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Constitution: Definition, Nature and Concepts The document which serves as the fundamental law of the state.1 That written instrument enacted by direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.2 2. Parts
Constitution of Liberty
The series of prescriptions setting forth the fundamental civil and political rights of the citizens and imposing limitations on the powers of government as a means of securing the enjoyment of those rights.3
Constitution of Government
The series of provisions outlining the organization of the government, enumerating its powers, laying down certain rules relative to its administration, and defining the electorate.4
Constitution of Sovereignty
The provisions pointing out the mode or procedure in accordance with which formal changes in the fundamental law may be brought about.5
V. Sinco, Philippine Political Law, 11th ed., p.68-70 Malcolm, Philippine Constitutional Law, p.6. 3 Art. III 4 Arts. VI, VII, VIII, IX 5 Art. XVII
3. Amendments and Revisions
Isolated or piece-meal change only.6
A revamp or rewriting of the whole instrument.7
4. Self-Executing and Non-Self-Executing Provisions
One which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies a sufficient rule by means of which the right it grants may be enjoyed or protected.
One which lays down a general principle
Required Steps In The Amendatory Process A. Proposal. It may come from: 1. Congress, by a vote of ¾ of all its members. The choice of method of method of proposal, i.e., whether made directly by Congress or through a Constitutional Convention, is within the full discretion of the legislature. (Occena vs. COMELEC, 104 SCRA 1) 2.Constitutional Convention, which may be called into existence either by a 2/3 vote of all the members of Congress, or, if such vote is not obtained, by a majority vote of all the members of Congress with the question of whether or not to call a Convention to be resolved by the people in a plebiscite 3. People, through the power of initiative. Through the “initiative” phase, the people propose the amendments. There is a valid proposal when a proposition has received the approval of at least 3% of the registered voters of each district and 12% of the total number of registered voters nationwide. This is followed by the “referendum” phase where the people vote to reject or ratify the proposal. B. Ratification Both amendment and revision signify change in the constitutional text. An amendment envisages of one or a few specific and isolated provisions of the Constitution. Its guiding original intention is to improve specific parts or to add new provisions or to suppress existing ones accordingly as addition or subtraction might be demanded by existing conditions. 7 In revision, the guiding intention and plan contemplate a re-examination of the entire document or an important cluster of provisions in the document to determine how and to what extent it should be altered. The end product of a revision can be an important structural change in the government or a change which affects several provisions of the Constitution. A revision of the Constitution cannot be effected through initiative and referendum. The change authorized by Art. XVII, Sec. 2 through initiative and referendum can only be amendment. The main reason is that formulation of provisions revising the Constitution requires both cooperation and debate which can only be done through a collegial body.
5. General Provisions8 The flag of the Philippines shall be red, white, and blue, with a sun and three stars, as consecrated and honored by the people and recognized by law.9 The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum.10 The State may not be sued without its consent.11 The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve as may be provided by law. It shall keep a regular force necessary for the security of the State.12 All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution. The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty. Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics. No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote. No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries. Laws on retirement of military officers shall not allow extension of their service. The officers and men of the regular force of the armed forces shall be recruited proportionately from all provinces and cities as far as practicable.
Art. X Sec. 1 10 Sec. 2 11 Sec. 3 12 Sec. 4
The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.13 The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.14 The State shall provide immediate and adequate care, benefits, and other forms of assistance to war veterans and veterans of military campaigns, their surviving spouses and orphans. Funds shall be provided therefor and due consideration shall be given them in the disposition of agricultural lands of the public domain and, in appropriate cases, in the utilization of natural resources.15 The State shall, from time to time, review to increase the pensions and other benefits due to retirees of both the government and the private sectors.16 The State shall protect consumers from trade malpractices and from substandard or hazardous products.17 The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.18 The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare. Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry.
Sec. 5 Sec. 6 15 Sec. 7 16 Sec. 8 17 Sec. 9 18 Sec. 10
1. The added basis in this case is the principle of the sovereign equality of States. under w/c one State cannot assert jurisdiction over another in violation of the maxim par in parem non habet imperium. 11 Sec. Sec. I 22 Art. Waiver of state immunity can only be made by an act of legislative body. While the doctrine appears to prohibit only suits against the state without its consent.) The consent to be sued. 12 21 Art. in order to be effective. such as the appropriation of the amount needed to pay the damages awarded against them. form part of the internal waters of the Philippines. 23 The doctrine is also available to foreign States insofar as they are sought to be sued in the courts of the local State.20 B. To do so would "unduly vex the peace of nations. regardless of their breadth and dimensions. 19 20 Sec.The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof. General Considerations 1. 2.”22 It emphasizes the unity of the land and waters by defining an archipelago as g roup of islands surrounded by waters or a body of waters studded with islands. I. 5 ." (Cruz. it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same. and all the executive and managing officers of such entities must be citizens of the Philippines. 2nd sen. Archipelagic Doctrine It is defined as “the waters around. between and connecting the islands of the archipelago.19 The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities. must come from the State. the majority of the members of which shall come from such communities. acting through a duly enacted statute. the suit must be regarded as against the state itself. although it has not been formally impleaded. State Immunity23 The general rule is that a state may not be sued without its consent. National Territory21 a.
cooperation. March 25. The cloak of immunity is removed from the moment the public official is sued in his individual capacity such as where he acts without authority or in excess of the powers vested in him. equality. freedom. from the highest official of the land down to the lowest level of the citizenry. 3. Ours is a government of laws and not of men. The Court said that such act constitutes a wanton violation of the principle that “ours is a government of laws and not of men. Inasmuch as the State authorizes only legal acts by its officers. Lukban.28 24 25 Art. and nobody. unauthorized acts of govt. Angara. Bill of rights 27 Sec. Its essence is that all persons. It is a weapon of reason and civility. The doctrine of state immunity cannot be used as an instrument for perpetrating an injustice. Political Law 116 (11th ed.27 The Philippines renounces war as an instrument of national policy. The SC castigated a Mayor for expelling alleged prostitutes from Manila and dumped them against their will in Davao. is not a suit against the State within the rule of immunity of the State from suit. II Binding rules which must be observed in the conduct of the government (Tanada vs. 1962) 26 Manifestations of a Republican State: A. adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace. Sovereignty resides in the people and all government authority emanates from them. Accountability of public officials D. In this case. General Principles and State Policies24 General Principles25 The Philippines is a democratic and republican State26. 778. for the protection of his rights. because these generally accepted principles of international law are automatically part of our own laws. the officers are liable for damages. justice.” (Villavicencio vs. officials or officers are not acts of the State. see Vicente Sinco. or beyond the scope of his authority or jurisdiction. 1 28 Sec. Phil.It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. 39 Phil. must respect the laws. must resort to the rule of law rather than taking the law into his hands. and amity with all nations. 2 Doctrine of Incorporation The courts have applied the rules of international law in a number of cases even if such rules had not previously been subject of statutory enactments. Rule of the majority (Plurality in elections) C. A public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith. and an action against the officials or officers by one whose rights have been invaded or violated by such acts. how great and painful might he have suffered in the hands of his persecutors or oppressors. 1919) B. 6 .
VII]. such as the Philippines. priest etc. G. the protection of life. 5. Art. compulsory retirement of officers.. XIV]. so as to avoid any regional clique from forming within the AFP [Sec. 7. decrees that rules of international law are given equal standing with.R. [Sec. Art. 2. III]. etc. 30 Sec. actually.. VI]. all citizens may be required. at all times. 2000) 29 Sec. The Government may call upon the people to defend the State and. which although extendible in case of emergency by the President. depends on Congressional declaration of emergency. military or civil service. and 6. 18. IX-C]. 2 (5) Art. Art.32 The doctrine of incorporation. 2. but are not subject to. No religious test clause [Sec. and property. VI]. to render personal. or to any penal institution or government orphanage or leprosarium [Sec. both statutes and treaties may be invalidated if they are in conflict with the constitution. of the military. supreme over the military. 139465. Religious denominations and sects cannot be registered as political parties [Sec. Art. 29(2). 3. 6. the requirement that the members of the AFP swear to uphold and defend the Constitution. insulation of the AFP from partisan politics. is assigned to the armed forces. 5 (2). national legislative enactments. 29 (2). Optional religious instruction for public elementary and high school students [Sec. Art. Art.30 The maintenance of peace and order. the principle of lex posterior derogat priori takes effect. charitable and educational purposes shall be exempt from taxation [Sec. 3 Ensured by: 1. the highest civilian authority as the commander-in-chief of the military [Sec. liberty. 5. as applied in most countries. 5. 4. 2. directly and exclusively used for religious. 28 (3). Art. 3 (3). and respect for human rights. XVI].and 7 . Art. Non-establishment of religion clause. except when. requirement of professional recruitment.Civilian authority is. Churches. 5. a 3-year limitation on the tour of duty of the Chief of Staff. 4. personages. No sectoral representative from religious sector [Sec. The Armed Forces of the Philippines is the protector of the people and the State. under conditions provided by law. Prohibition against appropriation for sectarian purposes. so as to avoid propagation of power. VI]. and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. 3. Freedom of religion clause.31 The separation of Church and State shall be inviolable. (Secretary of Justice v. No. the establishment of a police force that is not only civilian in character but also under the local executives [Sec. XVI]. January 18. the professionalization of the service and the strengthening of the patriotism and nationalism. Its goal is to secure the sovereignty of the State and the integrity of the national territory. 4 31 Sec. Lantion. Prohibition against appropriation for sectarian benefits. 3. Accordingly. and 9. the installation of the President. prohibition against appointment to a civil position.29 The prime duty of the Government is to serve and protect the people. Exceptions: 1. in the fulfillment thereof. 6. 8. Art. which is the fundamental law of the civil government. 5 32 Reinforced by: 1. In states where the constitution is the highest law of the land. VI].
38 Sec. The policy includes the prohibition not only of the possession. It shall inculcate in the youth patriotism and nationalism. 768 and 580) 34 Sec. 13 R. thus. 33 Guidelines for the orientation of the state (see IV Record of the Constitutional Commission. 7 35 Sec. which penalizes child prostitution and other sexual abuses. spiritual.39 The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. and an improved quality of life for all. control. intellectual. 9 37 It simply means the equalization of economic. and social well-being. in its relations with other states the paramount consideration shall be national sovereignty. except those established by religious groups and mission boards [Sec. It shall equally protect the life of the mother and the life of the unborn from conception. a rising standard of living. promote full employment. but it must be justified by the demands of the national interest.35 The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services.A. territorial integrity. 10 39 Sec.41 Filipino ownership requirement for educational institutions. the Court 4. 4 (2). XIV]. was enacted in consonance with the policy of the State to provide special protection to children from all forms of abuse. moral. 12 41 Sec.36 The State shall promote social justice37 in all phases of national development. 11 40 Sec.38 The State values the dignity of every human person and guarantees full respect for human rights. 8 . and the right to self-determination.40 The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical. political and social opportunities with special emphasis on the duty of the State to tilt the balance of social forces by favoring the disadvantaged in life.State Policies33 The Sate shall pursue an independent foreign policy. consistent with the national interest. Exception to this policy may be made by the political department. and manufacture of nuclear weapons but also nuclear arm tests. 7610. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. But the policy does not prohibit the peaceful uses of nuclear energy. 36 Sec.34 The Philippines. Art. and encourage their involvement in public and civic affairs. 8 Policy of freedom from nuclear weapons The Constitution prescribes a policy of freedom from nuclear weapons. adopts and pursues a policy of freedom from nuclear weapons in its territory. national interest.
culture.R. teaching staff. and shall ensure the fundamental equality before the law of women and men. 15 44 Sec. October 7. 128777.52 The State shall ensure the autonomy of local governments. 14 43 Sec. It shall protect the rights of workers and promote their welfare. Inc. 23 52 Sec. encourages private enterprise. 1998) 42 Sec. 19 48 Sec. 22 51 Sec. and promote total human liberation and development. Larin. 18 47 Sec.49 The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.48 The State shall promote comprehensive rural development and agrarian reform. No. 17 The requirement that a school must first obtain governmental authorization before operating is based on the State policy that educational programs and/or operations shall be of good quality and.44 The State shall give priority to education. physical plant and facilities and administrative and management viability. 24 9 . community-based.51 The State recognizes the vital role of communication and information in nationbuilding.45 The State affirms labor as a primary social economic force. arts. CA. and provides incentives to needed investments. or sectoral organizations that promote the welfare of the nation. 21 50 Sec. science and technology. therefore. (People v. 20 49 Sec. (Philippine Merchant Marine School. 16 This provision recognizes an enforceable right. v.42 The State shall protect and promote the right to health of the people and instill health consciousness among them. G. and sports to foster patriotism and nationalism. shall at least satisfy minimum standards with respect to curricula.The State recognizes the role of women in nation-building. 244 SCRA 770) 46 Sec.50 The State shall encourage non-governmental. 45 Sec.46 The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. accelerate social progress.53 grants the victim full vindication and protection granted under the law.47 The State recognizes the indispensable role of the private sector.43 The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.
the possibility of establishing a despotic and tyrannical regime capable of suppressing and suffocating the rights of the people becomes a tempting reality. 208 SCRA 133. The principle of separation of powers is based on the conception that if the totality of governmental powers were concentrated in one person or group of persons. 5.The State shall guarantee equal access to opportunities for public service. Separation of Powers57 Legislative power is given to the Legislature whose members hold office for a fixed term. 28 57 Purpose: to prevent concentration of authority in one person or group of persons that might lead to irreparable error or abuse in exercise to the detriment of republican institutions. and prohibit political dynasties as may be defined by law. June 26. 170 SCRA 786) 54 Sec. April 15. v.R.55 Subject to reasonable conditions prescribed by law. Mangelin. The challenged veto has far-reaching implications which the Court cannot countenance as they undermine the principle of separation of powers. 47065.54 The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. Drilon. 26 The purpose of this provision is to give substance to the desire for the equalization of political opportunities 55 Sec.56 4. 1992) 10 . Public Service Commission. 27 56 Sec. (Pangasinan Transportation Co. 1940) The SC nullified the veto exercised by the President adjusting the pension of Justices of the SC and the CA asserting in very strong terms that such an act palpably violates the doctrine of separation of powers. 25 Decentralization of Administration . and judicial power is held by an independent Judiciary. Decentralization of Powers – abdication of political power in the favor of local governments units declared to be autonomous.delegation of administrative powers to local government unit in order to broaden the base of governmental powers. Checks and Balances 53 Sec. (Bengzon vs. No. the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. executive power is given to a separate Executive who holds office for a fixed term. (Limbonas v. The Executive has no authority to set aside and overrule a decision of the SC. G.
64 Parliamentary 58 59 One in which the state confers upon the legislature the Permissible Delegation Art. the sovereign. VI. 10. Delegation to Local Government units. 7.61 4. thus. R. both in tenure and prerogative. XVII. Delegation to the people. Emergency powers of President60 3. RA 6753 62 Art X. 32. 23 (2) 61 Art. and furnishes him with sufficient power to prevent the legislature from trenching upon the sphere marked out by the State as executive independence and prerogative. 2. 6. VI. Sec. Sec.This allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments. Art. Forms of Government Presidential One in which the state. the Constitution also gives each department certain powers by which it may definitely restrain the others from improvident action. thereby maintaining a system of checks and balances among them. Tariff powers of the President59 2. preserving the will of the sovereign expressed in the Constitution. However. X. Art. Each department of government exercises powers granted to it by the Constitution and may not control.g. 7160 63 power of subordinate legislation 64 The principal identifying feature of a presidential form of government is embodied in the separation of powers doctrine. VI. 28 (2) 60 Art.premised on the ethical principle that delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another. makes the executive independent of the legislature. Delegation of Powers General Rule: Potestas delegata non potest delegare . Sec. 11 . e. Sec.A. Delegation to administrative bodies63. veto power of the President as check on improvident legislation. interfere with or encroach upon the acts done within the constitutional competence of the others. Sec.62 and 5. Exceptions:58 1.
65 Unitary or centralized One in which the powers of government are vested in one supreme organ from which all local governing authorities derive their existence and powers. each being supreme within its own sphere. the prime minister. Under this system. by common sovereign. usually the more popular chamber. Another feature is that the prime minister may be removed from office by a vote of loss of confidence by the parliament. distributed between a central government and the local government. 12 . There may be a head of state who may or may not be elected and who usually merely exercises ceremonial functions. The Philippine government is an example of a unitary form of government. either explicitly or impliedly. 68 Art. to which is left the task of providing for the territorial distribution of governmental powers with which it is invested. full and plenary embracing all subjects and extends to all matters of general concern except as limited by the Constitution.67 C. VI 69 power to propose.occupies a position of irresponsibility. Congress The power of the Congress to legislate is complete. amend and repeal laws. or. 66 The essence of a unitary form of government is the fact that a single organization has been created by the sovereign people (the people) through their constitution. the Cabinet or Ministry is immediately and legally responsible to the legislature or one branch thereof. who is the head of government. who are chosen from among the members of parliament and as such are accountable to the latter. (Aruego and Laguio) 67 Id.66 Federal One in which the governmental powers are. b.complete control of the administration of laws. while the titular or nominal executive – the King or Chief of State. and mediately or politically responsible to the electorate. and the members of the cabinet. Who May Exercise Legislative Power69 a. enact. Legislative Department68 1. substantively or procedurally. Regional/Local legislative power 65 The essential characteristic of a parliamentary form of government is the fusion of the legislative and executive branches in parliament.
or part thereof. Initiative on Statutes – petition proposing to enact a national legislation.73 a. Confer jurisdiction upon military courts and agencies over civilians.72 d.18. order the arrest of people who obstruct the war effort. amend or reject any ordinance enacted by the sanggunian. 126. Initiative on the Constitution – petition proposing amendments to the Constitution. 2. c. The President can: a. Initiative and Referendum Initiative70 Power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. b. People’s initiative on statutes i. Referendum71 Power of the electorate to approve or reject legislation through an election called for that purpose. provincial. passed by Congress. d. Art. (Sec. resolution or ordinance. Supplant the functioning of the civil courts and the legislative assemblies. par(4). 3. The President under a martial law rule or in a revolutionary government 1. The following cannot be done: suspend the operation of the Constitution. city.The power of a regional or local legislative body to make rules in the form of ordinances and resolutions of regional or local application that have the force and effect of law. Referendum on Local Laws – legal process whereby the registered voters of the local government units may approve. c. Initiative on Local Legislation – petition proposing to enact a regional. RA 7160 or the LGC of 1991) 72 Open Court Doctrine – civilians cannot be tried by military courts if the civil courts are open and functioning 73 Sec. Referendum on Statutes – petition to approve or reject an act or law. Automatically suspend the privilege of the writ of habeas corpus. VII 13 . where civil courts are able to function. 70 Classes of initiative: 1. b. Legislate. 2. 2. 71 Classes of Referendum: 1. municipality or barangay law.
76 Formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party (Bernas. Reapportionment within 3 years following return of every census.77 74 The Party-list organization must represent the “marginalized and underprivileged” and the nominees themselves must comply with this qualitative requirement (Ang Bagong Bayani. is entitled to one representation. and on the basis of a uniform and progressive ratio. compact and adjacent. Comelec G. vs. elected at large by the qualified voters of the Philippines. June 26. Gerrymandering76 is not allowed.74 (1) District Representatives and Questions of Apportionment Representative districts are apportioned among provinces. elected through a party-list system of registered national. regional and sectoral parties or organizations. 186) 14 . No. cities and the Metropolitan Manila area. Houses of Congress a. P. ii. 2001) 75 The underlying principle behind this rule for apportionment is the concept of equality of representation which is a basic principle of republicanism. regional and sectoral parties or organizations or coalitions thereof registered with the COMELEC.2.R. 147589. (2) Party-List System The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national. Party-list Representatives – shall constitute 20% of the total number of representatives. cities and municipalities in accordance with the number of their respective inhabitants. Reviewer in Philippine Constitution. House of Representatives Composed of not more than 250 members consisting of: i. et al.000 is entitled to at least one representative. Senate Composed of 24 senators. One man’s vote should carry as much weight as the vote of every other man. b. irrespective of population. each city with a population of at least 250. District Representatives – elected from legislative districts apportioned among the provinces.75 Each province. Each district must be contiguous.
79 This privilege protects the member concerned from any libel suit that may be filed against him for a speech made "in" the halls of Congress or in any of its committees. RA 7941. or sleeping at home). was not to allow all associations to participate indiscriminately in the party-list system but to limit participation to parties or organizations representing the “marginalized and underprivileged. The speech. since the incompatibility arises only because of his simultaneous membership in both. 15 . Inhibitions and Disqualifications A Senator or Member of the House of Representatives shall. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors. 80 Sec. even if he is session in the halls of Congress. What is essential is that the utterance must constitute “legislative action. freedom from arrest holds. however. agency. Legislative Privileges. whether regular or special. Cabangbang. 12 81 Sec. The prohibition lies in the "fiduciary" nature of the relationship involved. 17 SCRA 876) To come under the privilege. it is not essential that the Congress be in session when the utterance is made. be privileged from arrest 78 while the Congress is in session. the making of reports. a debate or discussion. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. or instrumentality thereof. 13 An incompatible office is a post which a member cannot accept unless he waives or forfeits his seat in Congress. Speech is not confined to traditional speech but even to the casting of votes. in all offenses punishable by not more than six years imprisonment. (Jimenez vs. as well as bills introduced and other acts done in the performance of official duties.81 77 The Court held that the intent of the Constitutional Commission and the implementing statute.” that is. if he waives or forfeits his seat. the member can be arrested. All Members of the Senate and the House of Representatives shall. even communicative actions. upon assumption of office. including government-owned or controlled corporations or their subsidiaries. make a full disclosure of their financial and business interests. such as speeches delivered. during his term without forfeiting his seat. votes cast. The crime for which the member is to be arrested is punishable by 6 years of imprisonment or less. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress79 or in any committee thereof. socializing in a private party. Thus. A sensu contrario.” 78 Congress must be in session. must be made "in" Congress in the discharge of legislative duty. It does not matter where the member of Congress may be found (attending the session.3. he may accept the other post. A forbidden office is one to which a member cannot be appointed even if he is willing to give up his seat in Congress. It follows too that if the crime is punishable by 6 years and 1 day of prision mayor or more. or any subdivision. it must be part of the deliberative and communicative process by which legislators participate in committee or congressional proceedings in the consideration of proposed legislation or of other matters which the Constitution has placed within the jurisdiction of the Congress. "Punishable" refers to the maximum possible penalty which a penal statute attaches to the offense. statements made. so long as Congress is in session. “Speech or debate” includes utterances made in the performance of official functions.80 No Senator or Member of the House of Representatives may hold any other office or employment in the Government. and any other form of expression. The effect of his resignation from the Congress is the loss of his seat therein but his disqualification for the forbidden office nevertheless remains.
when imposed. (Osmena vs. Pendatun. but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner. He shall not intervene in any matter before any officer of the Government for his pecuniary benefit or where he may be called upon to act on account of his office. and have a partner or associate appear for him in court. or quasi-judicial and other administrative bodies. If only 13 members are present. But to pass a law.e. 16 (2) The quorum required to conduct business is a majority (1/2 + 1) of all the members. or in any franchise or special privilege corporation. shift. ( Avelino v. there being a quorum. A penalty of suspension. Discipline of Members84 Each house may punish its members for disorderly behavior85. Such a member cannot resign in anticipation of the passage of the law creating such office or increasing its emolument as a way of circumventing the prohibition. Quorum and Voting Majorities A majority of each House shall constitute a quorum to do business. Neither shall he. the prohibition is not forever (as in the Jones Law). continue as partner. suspend86 or expel a member. 14 What the Constitution prohibits in the case of members of Congress who are also members of the bar is their personal appearance before any of these bodies. the number of votes needed to pass a bill would correspondingly increase. However. When a quorum cannot be had.. directly or indirectly. the same being a political question.83 5.No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals. The basis in determining the existence of a quorum in the Senate shall be the total number of Senators who are in the country and within the coercive jurisdiction of the Senate. 863) 86 for not more than 60 days 16 . Cuenco. and compel the attendance of the absent (recalcitrant) members by the means of arrest or such other measures and penalties as the House may provide in its rules. 109 Phil.82 4. 16 (3) 85 The determination of the acts which constitute disorderly behavior is within the full discretionary authority of the House concerned. 83 Phil. 82 Sec. give legal advice. during his term of office. and the Court will not review such determination. 17) 84 Sec. it is for the term for which he was elected. or its subsidiary. To illustrate: 13 members of the Senate are sufficient to constitute a quorum. with the concurrence of 2/3 of all its members. But as the number of those present increases. as such House may provide. This is not a prohibition against. Thus. a member may still sign and file his pleadings. the practice of law in any court. a smaller number may adjourn from day to day. i. and under such penalties. and. shall not exceed sixty days. 83 Sec. a vote by 7 in favor of a bill is sufficient to pass it. be interested financially in any contract with. only the votes of the majority of those present in the session. are required. This is known as the "shifting majority".
87 Composition: 1) 3 Supreme Court Justices designated by Chief Justice. For the effectivity of the appointment of certain key officials enumerated in the Constitution. Rule-making power92 Commission on Appointments90 1. 123037. and 2) 6 members of the Chamber concerned (Senate or HR) chosen on the basis of proportional representation from political parties and parties registered under the party-list system Senior Justice shall act as Chairman. 88 Composition: 1) 12 Senators and 12 Representatives. and its decision may be reviewed by the SC only upon showing of grave abuse of discretion in a petition for certiorari filed under Rule 65 of the Rules of Court. 3) Chairman shall not vote except in case of tie. 2) Senate President as ex-officio chairman. Meetings are held either at the call of the Chairman or a majority of all its members. VI. G. March 21. Power to promulgate its own rules of proceedings.89 Commission on Appointments88 It acts as a legislative check on the appointing authority of the President. elected by each house on the basis of proportional representation from the political parties and parties and organizations registered under the party-list system represented therein. HRET. Sec.6. 1997 90 Commission on Appointments meets only while Congress is in session.91 2. Shall act on all appointments submitted to it within 30 session days of Congress from their submission. 91 Art. Powers Electoral Tribunals 1. Since the Commission on Appointments is also an independent constitutional body. the consent of the Commission on Appointments is needed. returns and qualification of their respective members.R. Sole judge of all contests relating to the election. its rules of procedure are also outside the scope of congressional powers as well as that of the judiciary. 17 92 Lazatin v. b. 168 SCRA 391 17 . HRET. 89 Pena vs. No. Electoral Tribunals and the Commission on Appointments a. Nature Electoral Tribunal87 Independent of the Houses of Congress. and 2.
or upon the request of either House. Powers of Congress a. Legislative (1) Legislative Inquiries and the Oversight Functions The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. but may cover matters related thereto. There are some cases where the version of the bill approved by Congress is different from the one in the Senate or vice-versa. or affected by such. as the rules of each House shall provide. then it is beyond the scope of congressional powers. 95 Sec. they may not appear without the permission of the President. (b) in accordance with duly published rules of procedure. It has to be exercised in accordance with the limitations imposed by the Constitution: (a) in aid of legislation. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. appear before and be heard by such House on any matter pertaining to their departments. upon their own initiative. (c) rights of persons appearing in. with the consent of the President94. However. the appearance shall be conducted in executive session. The rights of persons appearing in or affected by such inquiries shall be respected.7. 95 (2) Bicameral Conference Committee Bills or "suggested laws" are put forward by either Congress or Senate but it has to be approved by both bodies before it can proceed to become law.93 The heads of departments may. 18 . To enforce this right. the SC upheld the power of Congress to hold in contempt a person required to appear before Congress or its committee and answer questions relevant to a matter of legislative interest. 22 Oversight functions: Such functions are intended to enable Congress to determine how laws it has passed are being implemented. and because department heads are alter egos of the President. if the investigation is no longer “in aid of legislation” but “in aid of prosecution” which the stated purpose of the investigation is to determine the existence of violations of the law. It is an indispensable requirement for an effective discharge of legislative authority designed to gather data or information vital in the formulation of laws without which legislative power becomes an empty term. the exercise of such duty is not illimitable. 94 In deference to separation of powers. 21 Each house or any of its committees may conduct "inquiries in aid of legislation" according to its duly published rules of procedures. inquiry shall be respected But. Interpellations shall not be limited to written questions. The bill cannot be passed if it has multiple forms because then multiple laws 93 Sec. When the security of the State or the public interest so requires and the President so states in writing.
He may veto a bill on any ground. before it becomes a law. Appropriation Bill . Bill of Local Application . Of Finance. the votes of each House shall be determined by yeas or nays. it shall be sent. but the Senate may propose or concur with amendments. and the names of the Members voting for or against shall be entered in its Journal. If. revenue or tariff bills. otherwise. and if approved by two-thirds of all the Members of that House. he must veto the bill in its entirety. after such reconsideration.one that is addressed to a particular place or locality or where the interest of a designated community is the thrust of the bill. 24 Shall originate exclusively from the House – the initiative for filing of RAT Bills must come from the House. when the President vetoes a bill. bills authorizing increase of the public debt. bills of local application. be presented to the President. Private Bill . 97 The exercise of the veto power of the President is purely discretionary. and private bills shall originate exclusively in the House of Representatives.one that is specifically designed to raise money or revenue through imposition or levy. whether on constitutional grounds or even on the wisdom and practicability of the bill which cannot be interfered with on the theory that the exercise of such power is a political act. together with the objections. two-thirds of all the Members of such House shall agree to pass the bill. but the veto shall not affect the item or items to which he does not object. so long as the action by the Senate is withheld pending the receipt of the House bill. the President is allowed to veto any item or items in an appropriation. otherwise. he shall veto it and return the same with his objections to the House where it originated. (Tolentino v. (3) Limitations on Legislative Power (a) Limitations on Revenue. Revenue Bill .96 (b) Presidential Veto97 and Congressional Override (1) Every bill passed by the Congress shall.one the principal and specific aim of which is to appropriate a certain sum of money from the public treasury. 235 SCRA 630). he shall sign it. but it does not prohibit the filing in the Senate a substitute bill in anticipation of its receipt of the bill from the House. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof. If he approves the same. In all such cases.will be created. tariff or revenue bill. Sec. However. it shall become a law.one that is addressed to a specific private interest. which shall enter the objections at large in its Journal and proceed to reconsider it. As a general rule. 96 Sec. a bicameral conference committee is created which takes representatives from both Congress and Senate and they unify the two differing bills into one coherent law. 19 . Appropriations and Tariff Measures All appropriation. to the other House by which it shall likewise be reconsidered. To resolve this issue. and each version needs to be approved by both Congress and Senate. it shall become a law as if he had signed it.
2. the Vice-President. The inability of the President to return the bill within the reglementary period prescribed by the Constitution converts the bill. or betrayal of public trust. In all such cases. processed and acted on information vital to its role as national legislature. 10.102 98 Sec. and conviction of. Art.101 c. Power to call a special election for President and Vice‐President. If approved by 2/3 of all the members of that house. Power to act as Board of Canvassers in election of President. VI 101 Sec. 99 Sec. 27 When the President vetoes a measure. [VI. All other public officers and employees may be removed from office as provided by law. Congress informs itself in an effort to produce better legislation. and the Ombudsman may be removed from office on impeachment for. but the veto shall not affect the item or items to which he does not object. bribery. and the names of the members voting for or against shall be entered in the Journal. it shall be sent together with the objections of the President. 2/3 of all the members of such house shall agree to pass the bill. the Members of the Supreme Court. the bill becomes a law as if he had signed it. 20 . revenue. 27(1)] Pocket Veto One by which the President secures the disapproval of a bill by mere inaction after the adjournment of Congress. Pocket veto is not allowed because under the Constitution.100 b. and of reporting its activities to the public. where the President fails to communicate his veto on any bill to the House where it originated within 30 days after receipt thereof. indicating his objections thereto in what is commonly known as a "veto message" so that the same can be studied by the members for possible overriding of his veto Upon consideration of the objections raised by the President in his veto message. into law. Art. VII 102 Ibid. graft and corruption. the votes of each house shall be determined by "yeas" or "nays". by inaction. XI 100 Sec. Power to declare the existence of state of war. culpable violation of the Constitution.98 b. the House from which the bill originated shall reconsider the bill. other high crimes.99 3) Other non-legislative power a. he should return the measure to the House of origin. If after such reconsideration. it shall become a law. Non-Legislative (1) Informing Function The means by which Congress has collected. to the other house by which it shall likewise be reconsidered. 23 . but not by impeachment.(2) The President shall have the power to veto any particular item or items in an appropriation. Art. 2) Power of impeachment The President. the Members of the Constitutional Commissions. treason. or tariff bill.
Power to revoke or extend suspension of the privilege of the writ of habeas corpus or declaration of martial law. 105 Sec. id. id.104 f. 19. Sec. Power to concur in Presidential amnesties.106 103 104 Ibid. Power to judge President’s physical fitness to discharge the functions of the Presidency.103 e. Power to concur in treaties or international agreements. id. 18.105 g. 21. 21 .d. 106 Sec.
XII 109 Sec. ibid). R.S.R. Senate Committee on Accountability of Public Officers and Investigation. 2. VI 110 Art. 146710-15. No. The 1987 Constitution. Power to confirm certain appointments/nominations made by the President. 9 and 16. 19. Executive Department110 1. VII 111 Deemed implied in the Constitution (Bernas. Privileges. G. et al. 963124. recommendations Secs. March 25. Inhibitions and Disqualifications a. 20 and 21. A Commentary 2003 Ed. Desierto. Power of internal organization. March 2..108 g. G. 16. and diplomatic (Secs. (Soliven v. Art. a) Election of officers b) Promulgate internal rules c) Disciplinary powers109 D. ibid) powers. VII. 2008 citing U. 18063. documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential. Presidential Immunity Immunity from suit during his tenure111 b. Sec. Presidential Privilege112 Two kinds: Presidential communications privilege Communications. Deliberative process privilege 107 108 Includes advisory opinions. June 17. 1997) 22 .107 i. the information relating to those powers may enjoy greater confidentiality than others (Neri vs. the President is the repository of the commander-in-chief (Art. 2001) While the President is immune from suit. Sec. appointing (Sec. 167 SCRA 393) 112 It is highly recognized in cases where the subject of the inquiry relates to a power textually committed by the Constitution to the President. 18). Consistent with the doctrine of separation of powers. Under our Constitution. Such immunity must be exercised only by the President himself and not by others on his behalf. 16.h. p 803) The immunity does not however extend to non-official acts or for wrong doing (Estrada vs. such as the area of military and foreign relations. id. ibid). Makasiar. Court of Appeals In Re: Sealed Case No. Nos. Art. Power relative to natural resources.. she may not be prevented from instituting suit. pardoning (Sec.
bureaus and offices. equipment. and other officers whose appointments are vested in him in this Constitution. group. and transfer functions. b. and (iv) Commute or remove administrative penalties or disabilities upon officials or employees in disciplinary cases. bureau. bureaus. records and personnel from one ministry. materials and equipment. Powers a. 17 "Control" is the power to substitute one's own judgment in that of a subordinate. by law. agency or instrumentality to another.114 Administrative Powers (i) Create. appropriations. property. 114 faithful execution clause Sec. or officers of the armed forces from the rank of colonel or naval captain. instrumentalities and functions of the government. (ii) Standardize salaries. Executive and Administrative Powers in General Executive Powers The President shall have control of all executive departments. (iii) Remove or otherwise discipline officers of the government as may be provided by law. abolish. ambassadors. coordinate. with the consent of the Commission on Appointments. 2. He shall ensure that laws are faithfully executed. merge or integrate departments. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law. office. President has a duty to execute it regardless of his doubts as to its validity. Power of Appointment (1) In General The President shall nominate and. agencies. vest the appointment of other officers lower in rank in the 113 Sec. appoint the heads of the executive departments.1 and 17 23 .113 Until and unless a law is declared unconstitutional. offices. other public ministers and consuls. and those whom he may be authorized by law to appoint. The Congress may.and deliberations comprising part of a process by which governmental decisions and policies are formulated. consolidate.
It is such power which has been given to the President over all executive officers. The power of the President over local governments is only of general supervision.117 (4) Power of Removal General rule: this power is implied from the power to appoint. c. not over the actor. commissions. Ambassadors and other public ministers and consuls. agencies. from Cabinet members to the lowliest clerk. Officers of the AFP from the rank of colonel or naval captain. Mison. or boards. 143). The power of supervision does not include the power of control. but the power of control necessarily includes the power of supervision. Heads of executive departments. 16 Sarmiento v.R.115 (2) Commission on Appointments Confirmation a. Castillo. This is an element of the presidential system where the President is the Executive of the Government of the Philippines. 24 . Other ministers whose appointments are vested in him by the Constitution 116 (3) Midnight Appointments Those made by the President or Acting President two months immediately before the next presidential elections and up to the end of his term. in the courts. December 17. whether voluntary or compulsory. and d.President alone. 79974. But the power of control may be exercised by the President only over the acts. VII 118 e. 9 SCRA 619) 120 It is the power of a superior officer to ensure that the laws are faithfully executed by inferiors. 1987 117 See Section 15. 97 Phil. and no other. impeachment 119 The power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter (Mondano v. The President shall have the power to make appointments during the recess of the Congress. Power of Control119 and Supervision120 (1) Doctrine of Qualified Political Agency121 115 116 Sec. but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.g. G. Exception: those appointed by him where the Constitution prescribes certain methods for separation from public service. (Angangco v. No. Art.118 c. Silvosa. or in the heads of departments. except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. b.
17 124 Sec.All executive and administrative organizations are adjuncts of the Executive Department. performed and promulgated in the regular course of business. Authority of Congress to revoke or extend the effectivity of proclamation: by majority vote of all of its members voting jointly. bureaus. 67 Phil. Art. Provinces with respect to component cities and municipalities. Person arrested must be charged within 3 days. at the instance of any citizen. the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments. and/or organize courts martial and create military commissions. if not. Proclamation does not affect the right to bail. 4 125 Sec. the heads of the various executive departments are assistants and agents of the Chief Executive.124 d. Authority of the Supreme Court: to inquire into the sufficiency of the factual basis for such action. VIII 126 Commander-in –Chief clause 127 Grounds: invasion or rebellion. Decision must be promulgated 30 days within its filing. To call out the Armed Force to prevent or suppress lawless violence. Suspension of the Privilege of Writ of Habeas Corpus and Declaration of Martial Law127 e. Secretary of Interior. Duration: not more than 60 days. and cities and municipalities with respect to component barangays. are. and offices. 451 123 Sec. unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. Proclamation does not supersede civilian authority 25 . Pardoning Power 121 122 Alter Ego Principle Villena v. Duty of the President to report to Congress: within 48 hours personally or in writing. 18. invasion or rebellion. following which it shall be lifted.122 (2) Executive Departments and Offices The President shall have control of all the executive departments. Suspension applies only to persons facing charges of rebellion or offenses inherent in or directly connected with invasion. unless extended by Congress. when public safety requires it. He shall ensure that the laws be faithfully executed. Military Powers125 1. and the acts of the secretaries of such departments. shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. must be released.126 2. except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally. and.123 (3) Local Government Units The President of the Philippines shall exercise general supervision over local governments.
cannot be granted in cases of legislative contempt or civil contempt. c.Plenary or partial. may not be controlled by the legislature or reversed by the court. unless there is a constitutional violation. 26 . Commutation Reduction or mitigation of the penalty. can be granted only after convictions by final judgment. Limitations a. (2) Forms of Executive Clemency Pardon129 Act of grace which exempts individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed. Reprieve Postponement of sentence or stay of execution. and 2. cannot be granted in violations of election laws without favorable recommendations of the COMELEC. and f. cannot restore public offices forfeited. as parolee is in the custody of the law although not in confinement. granted in cases of b. cannot absolve convict of civil liability. cannot be impeachment. Parole Release from imprisonment. e.128 d. 128 129 except amnesty Pardon Classified: 1. but without full restoration of liberty.Absolute or conditional.(1) Nature and Limitations Nature Discretionary.
Powers relative to appropriation measures The President shall submit to the Congress. Unless sooner withdrawn by resolution of the Congress. Delegated powers In times of war or other national emergency. import and export quotas. The power to contract and guarantee foreign loans on behalf of the Republic e. f. tariff rates. by law. to exercise powers necessary and proper to carry out a declared national policy. g. which puts into oblivion the offense itself. The power to receive ambassadors and other public ministers accredited to the d. Philippines 27 . within thirty days from the opening of every regular session as the basis of the general appropriations bill. and subject to such limitations and restrictions as it may impose. The power to deport aliens 131 Sec. tonnage and wharfage dues.134 i.132 h. including receipts from existing and proposed revenue measures. the Congress may. Veto powers 130 Some of the foreign relations powers of the President a. 28 (2). id. concurred in by the Legislature.Amnesty Act of grace. by law.131 In public international law. The power to appoint ambassadors and other public ministers and consuls c. 22 133 Sec. and other duties or imposts within the framework of the national development program of the Government. such powers shall cease upon the next adjournment thereof. 23 (2). The power to negotiate treaties and international agreements b. the conduct of foreign relations or diplomatic power is vested in the Head of State or sovereign. authorize the President to fix within specified limits. 21 132 Sec. Art. a budget of expenditures and sources of financing. usually extended to groups of persons who committed political offenses. for a limited period and subject to such restrictions as it may prescribe.133 The Congress may. the President holds actual executive power including the conduct of foreign relations. Diplomatic Power130 No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all members of Senate. VI 134 Sec. authorize the President. In States which observe the doctrine of separation of powers.
the Vice President-elect shall act as President until a President shall have been chosen and qualified. which shall enter the objections at large in its Journal and proceed to reconsider it. to the other House by which it shall likewise be reconsidered. and the names of the Members voting for or against shall be entered in its Journal. it shall become a law as if he had signed it. whatever is not legislative. The President shall have the power to veto any particular item or items in an appropriation. Residual Powers Whatever is not judicial. If at the beginning of the term of the President. or tariff bill. If a President shall not have been chosen. it shall be sent. but the veto shall not affect the item or items to which he does not object. C. in case of his inability. id. the votes of each House shall be determined by yeas or nays. two-thirds of all the Members of such House shall agree to pass the bill. Manglapus. after such reconsideration. is residual power exercised by the President. revenue. be presented to the President. If the President-elect fails to qualify. together with the objections. 135 136 Sec.135 j. the Speaker of the House of Representatives. the President-elect shall have died or shall have become permanently disabled. 27. before it becomes a law. and if approved by two-thirds of all the Members of that House. Rules on Succession The President-elect and the Vice President-elect shall assume office at the beginning of their terms. the courts. otherwise. he shall veto it and return the same with his objections to the House where it originated. If he approves the same he shall sign it. Where no President and Vice-President shall have been chosen or shall have qualified. the Vice President-elect shall act as President until the President-elect shall have qualified. Marcos v. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof. If. and the Congress. it shall become a law.136 k.Every bill passed by the Congress shall. or where both shall have died or become permanently disabled. 178 SCRA 760 28 . In all such cases. the President of the Senate or. shall act as President until a President or a Vice-President shall have been chosen and qualified. Executive privilege It is the power of the President to withhold certain types of information from the public. the Vice President-elect shall become President. otherwise.
and be subject to the same restrictions of powers and disqualifications as the Acting President. Art. Judicial Power141 The duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. removal from office. Judicial Department140 1. id. He shall serve until the President or the Vice-President shall have been elected and qualified. or resignation of the President. VII Sec. permanent disability. Art. 142 Sec. permanent disability. the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress. in case of his inability. Concepts a. 140 Art. Such lower courts as may be established by law (Sec. 8. permanent disability. by law. 7. par. In case of death. or inability of the officials mentioned in the next preceding paragraph. provide who shall serve as President in case of death.139 E. 139 Sec. and 2. VIII). voting separately. by law. permanent disability. in case of death.138 Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected. shall then act as President until the President or Vice-President shall have been elected and qualified. 1. the Speaker of the House of Representatives. removal from office. or resignation of the Acting President.142 137 138 Sec. the President of the Senate or. id. 9. or resignation of both the President and Vice-President. and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.2 29 . 1.The Congress shall. VIII 141 vested in: 1.137 In case of death. One Supreme Court. The Congress shall. the Vice-President shall become the President to serve the unexpired term. provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified.
R. 95832.R. Court of Appeals. notice to the Solicitor General is mandatory. c) Voluntary cessation from the wrongful act by the defendant. No. in all actions assailing the validity of a statute. G. Fertiphil Corp. March 14. No. to interpret the Constitution and to declare any legislative or executive act invalid because it is in conflict with the fundamental law. Court of Appeals. as required in Sec.R. only applies as a matter of equity and fair play. 143 All courts can exercise Judicial Review: The Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law for Sec. supra citing Peralta vs. The past cannot always be erased by a new judicial declaration. 5(2). it ceases to be a case and controversy. When a case is moot and academic. The Constitution vests the power of judicial review not only in the Supreme Court but also in the RTC. the SC enforces and upholds the supremacy of the Constitution (1) Operative Fact Doctrine An unconstitutional law has an effect before being declared unconstitutional. Through such power. However. presidential decree. G. ( J. Court of Appeals. G. 1993. 2008. 166006. Art. 79732. The doctrine of operative fact as an exception to the general rule. order or proclamation – and not just in actions involving declaratory relief and similar remedies. 128448. 1992. Civil Service Commission. August 10. v. 145 Planters Products. Any decision reached by the court would not be conclusive on the parties. injuries and heated arguments but for some reason the legal problem has become stale.. Tuason and Co. VIII of the Constitution. February 1. Art. They are abstract questions that do not arise from existing facts or rights. No.R. VIII speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue. No. November 8. 227 SCRA 509. 3. citing Republic vs.144 It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The Court may still exercise the power of judicial review even if the issues had become moot and academic when it feels called upon to exercise its symbolic function Exceptions to mootness: a) If the question is capable of repetition and evasive of review. 212 SCRA 425.145 (2) Moot Questions146 A case becomes moot when there are facts. 3 SCRA 696). This authority is derived by clear implication from the provision of Sec.M. 5 (2). 146 Moot refers to a subject for academic argument. G. treaty. if he is free to return to his old ways. 2001) 144 Planters Products vs. b) If there exist a mere possibility of collateral legal consequences if the court does not act. ultimately of the SC.b. 30 . Judicial Review143 The power of the courts. Rule 64 of the Rules of Court. The purpose of this mandatory notice is to enable the Solicitor General to decide whether or not his intervention in the action is necessary ( Mirasol v.
147 2. b. e. or in regard to which full discretionary authority has been delegated to the legislature or executive branches of government. judiciary enjoys fiscal autonomy. j. which refers to an obligation of the court to honor previous decisions. f. Members are only removable by impeachment. i. unless the law is clearly unconstitutional. In most cases. SC has exclusive power to discipline judges/justices of inferior courts. h. Conservative judges often employ judicial restraint when deciding cases. Members of judiciary may not be designated to any agency performing quasijudicial or administrative functions. Judicial Restraint A legal term that describes a type of judicial interpretation that emphasizes the limited nature of the court's power. Judicial restraint is the opposite of judicial activism. Cuenco. are to be decided by the people in their sovereign capacity. Safeguards of Judicial Independence a. SC may not be deprived of minimum and appellate jurisdiction. SC has administrative supervision over all inferior courts and personnel. and k. SC is a Constitutional body. SC can appoint all officials and employees of the Judiciary 3. 100 Phil 1101 31 .(3) Political Question Doctrine Those questions which. the judicially restrained judge will decide a cases in such a way as to uphold the law established by 147 Tañada v. Judicial restraint asks judges to base their judicial decisions solely on the concept of stare decisis.. under the Constitution. may not be abolished by law. SC alone may order temporary detail of judges. Members of judiciary enjoy security of tenure. appellate jurisdiction may not be increased without its advice or concurrence. c. Salaries of judges may not be reduced. g. in that it seeks to limit the power of judges to create new laws or policy. d. SC alone may initiate Rules of Court.
international or executive agreement. Cases where the Supreme Court modifies or reverses a doctrine or principle of 148 Division Cases149 Other cases or matters may be heard in division. Appointments to the Judiciary a. either rendered en banc or in division. orders. All cases involving the constitutionality of a treaty. but in no case without the concurrence of at least three (3) such members.Congress. and sits veritably as the Court en banc itself. 5. When the Supreme Court sits en banc. Supreme Court a. The only constraint is that any doctrine or principle of law laid down by the Court. the votes of at least five are needed and are enough. 4. For lower courts. cases are decided by the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. even if it is a question of constitutionality.R. may be overturned or reversed only by the Court sitting en banc (Firestone Ceramics v. En Banc and Division Cases En Banc Cases148 1. 127245. All cases involving the constitutionality. those who did not take part in the deliberation do not have the right to vote. 2000) 32 . All cases which under the Rules of Court may be required to be heard en banc 3. G. President shall issue the appointment 90 days from submission of the list. or law 2. Each division of the Court is considered not a body inferior to the Court en banc. The SC sitting en banc is not an appellate court vis-à-vis its divisions. Moreover. Appointed by President from among a list of at least 3 nominees prepared by Judicial and Bar Council for every vacancy. 149 Decisions of a Division of the SC are not appealable to the Court en banc. ordinances and other regulations 4. CA. Thus. proclamations. This is a liberalization of the old rule which required a qualified majority of a definite number. June 28. Jurists who practice judicial restraint show a solemn respect for the separation of governmental problems. No. Decisions or resolutions of a division of the Court. and decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues and voted thereon. since a quorum of the SC is eight. b. when concurred in by a majority of its members who actually took part in the deliberations on the issues in a case and voted thereon is a decision or resolution of the SC itself. application or operation of presidential decrees. instructions. and it exercises no appellate jurisdiction over the latter. Cases heard by a division when the required majority in the division is not obtained 5.
Vasquez. shall be uniform for all courts of the same grade. final judgments and orders of lower courts in: 150 The SC declared that the 1987 Constitution took away the power of Congress to repeal.R. and legal assistance to the underprivileged. quo warranto.153 d. Such rule shall provide a simplified and inexpensive procedure for the speedy disposition of cases. Review. Election contests for President or Vice-President. 221 SCRA 464) 153 Art. Original and appellate jurisdiction 1. b. or affirm on appeal or certiorari.151 c. VIII. VIII. practice and procedure. The power to promulgate rules of pleading. 5 (5) 152 In the absence of any administrative action taken against the RTC Judge by the SC with regard to the Judge’s certificate of service. and habeas corpus. or modify substantive rights. (Echegaray vs. practice. (Maceda v. the admission to the practice of law. as the law or the Rules of Court may provide. No. prohibition. and over petitions for certiorari.law previously laid down either en banc or in division 6. alter or supplement rules concerning pleading. Administrative cases involving the discipline or dismissal of judges of lower courts 7. Procedural Rule Making150 Promulgate rules concerning the protection and enforcement of constitutional rights. 132601) 151 Art. more so with the Executive. increase. other public ministers and consuls. in violation of the doctrine of separation of powers. the investigation conducted by the Ombudsman encroaches into the SC’s power of administrative supervision over all courts and its personnel. pleading. G. practice and procedure is no longer shared by the Court with Congress. 6 33 . 2. modify. Secretary of Justice. mandamus. Sec. Exercise original jurisdiction over cases affecting ambassadors. Administrative Supervision over Lower Courts152 The Supreme Court shall have administrative supervision over all courts and the personnel thereof. Sec. and procedure in all courts. and shall not diminish. revise. the Integrated Bar. reverse. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
Sept. 154 155 uslegal.R. All cases in which only an error or question of law is involved. witness. Each is conferred certain powers and functions which cannot be reduced by statute. law. may not be abolished by statute. COMELEC. but applies only where: (1) the statements involved were made during the course of judicial proceedings. All criminal cases in which the penalty imposed is reclusion perpetua or higher. and CoA are equally pre‐eminent in their respective spheres.com Black’s Law Dictionary. this privilege is not absolute. 156 The CSC. party. They are constitutionally created. or regulation is in question. international or executive agreement. assessment. impost. The Chairmen and members are given fairly a long term of office of 7 years. Neither one may claim dominance over the others.155 F. and (2) they were relevant to the subject of inquiry. e. d. 160508. or toll. All cases involving the legality of any tax. 2004) 34 . e. b. The privilege is most often applied to defamation claims but may be extended to encompass other torts. ordinance. All cases in which the constitutionality or validity of any treaty. 15. or advocate . it is the Judiciary. Judicial privilege It is the privilege protecting any statement made in the course of and with reference to a judicial proceeding by any judge. The Chairmen and members cannot be removed except by impeachment. All cases in which the jurisdiction of any lower court is in issue. Constitutional Commissions156 1. Pobre. No. Each is expressly described as “independent. Constitutional safeguards to ensure independence of commissions a.a. such as invasion of privacy and disclosure of trade secrets. c. order. instruction. G.” c. presidential decree. or any penalty imposed in relation thereto. proclamation.154 A privilege protecting the attorneys and parties in a lawsuit against tort claims based on certain acts done and statements made when related to the litigation. The facts of each case determine whether the privilege applies and whether it is qualified or absolute. However. d. In case of conflicting rulings. which interprets the meaning of the law and ascertains which view shall prevail (CSC v. 6. 9th Ed. b. juror.
the CSC enjoys wide latitude of discretion and may not be compelled by mandamus to issue eligibility. 2. quasi-judicial powers and quasi legislative or rule-making powers (Bernas Commentary.159 b.160 c. The salaries of the Chairmen and members are relatively high and may not be decreased during continuance in office. nothing more. Art. e. It can perform executive powers. it can only be abolished by the Legislature ( Eugenio v. k.f. 192 SCRA 358 The Commission is an administrative agency. j. the CSC has the power to hear and decide administrative cases instituted before it directly or on appeal. g. The Commissions may appoint their own officials and employees in accordance with Civil Service Law. including contested appointments. and courtesy in the civil service. CSC) But the CSC cannot validly abolish the Career Executive Service Board (CESB). responsiveness. provided they do not diminish. 1995) 160 Under the Administrative Code of 1987. (Torregoza v. p. 6850 (granting civil service eligibility to employees under provisional or temporary status who have rendered seven years of efficient service). progressiveness. f. increase or modify substantive rights [though subject to disapproval by the SC. The Chairmen and members are subject to certain disqualifications calculated to strengthen their integrity.161 d. It has the power to hear and decide administrative cases. because the CESB was created by law. h. i. it can only perform powers proper to an administrative agency. The CSC as the personnel agency of the government shall establish a career service.157 g. IX-B 35 . It shall integrate all human resources 157 158 Brillantes v. It shall strengthen the merit and rewards system. Powers and Functions of each commission Civil Service Commission:158 a. integrity. The Chairmen and members may not be reappointed or appointed in an acting capacity. As such. 1003 (2003 ed. efficiency. The CSC shall administer the civil service. Each Commission may promulgate its own procedural rules. Yorac.1(1).) 159 In the exercise of its powers to implement R. The Commissions enjoy fiscal autonomy. The Commission has the power to grant civil service eligibility. CSC.A. 161 Sec. It shall adopt measures to promote morale.
development programs for all levels and ranks; h. It shall institutionalize a management climate conducive to public accountability. i. It shall submit to the President and the Congress an annual report on its personnel programs.162 Commission on Elections:163 a. Enforce and administer law and regulations relative to conduct of elections, plebiscite, initiative, referendum or recall;164 b. Decide, except those involving right to vote, all questions affecting elections, including the determination of number and location of polling places, appointment of election officials and inspectors and registration of voters;165 c. Decide administrative questions.166 d. Deputize, with concurrence of President, law enforcement agencies and instrumentalities for exclusive purpose of insuring free, orderly, honest, peaceful and credible elections;167 e. Register, after sufficient publication, political parties, organizations or coalitions which must present
Sec. 3, id. Art. IX-C Like the CSC, the COMELEC is an administrative agency. As such, therefore, the power it possesses are executive, quasi-judicial and quasi legislative. By exception, however, it has been given judicial power as judge with exclusive original jurisdiction over “all contest relating to the election, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contest involving elective municipal officials decided by trial courts of general jurisdiction or involving elective barangay officials decided by trial courts of limited jurisdiction (Bernas Primer at 393 (2006 ed.) The COMELEC's exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that 1) all election cases, including pre-proclamation controversies, shall be decided by the COMELEC in division, and 2) the motion for reconsideration shall be decided by the COMELEC en banc. The prosecution of election law violators involves the exercise of the COMELEC's administrative powers. Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal information for double registration against petitioners in the instant case. There is no constitutional requirement that the filing of the criminal information be first decided by any of the divisions of the COMELEC. (Baytan vs. Comelec, G.R. No. 153945, February 4, 2003) 164 e.g. COMELEC can enjoin construction of public works within 45 days of an electioin 165 Sec. 2(2) These petitions are cognizable by the regular courts (MTCs) 166 Sec. 2(3) 167 Sec. 2(4) This power is not limited to the election period Applies to both criminal and administrative cases
their platform or program of government; accredit citizen’s arms;168 f. Power to Promulgate Rules169 g. Supervision or regulation of franchises170 h. Contempt powers171 i. Issue writs of certiorari, prohibition and mandamus in the exercise of its appellate jurisdiction; j. File upon verified complaint or motu proprio petitions in court for inclusion or exclusion of voters; investigate and, where appropriate , prosecute cases of violations of elections laws, including acts or omissions constituting election frauds, offenses and malpractices;172 k. Recommend to Congress effective measures to minimize election spending, limitation of places and prevent and penalize all forms of election frauds, offenses, malpractice and nuisance candidates;173 and j. Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard or, or disobedience to its directive, order or decision.174 m. Submit to President and Congress, comprehensive reports on conduct of each election, plebiscite, initiative, referendum or recall.
Sec. 2(5) Groups that cannot be registered: 1. Religious denominations/sects 2. Those that achieve their goals through violence or unlawful means 3. Those that refuse to uphold and adhere to the Constitution 4. Those supported by any foreign government, e.g. receipt of financial contributions related to elections 169 Sec. 3, id. 170 Sec, 4, id. 171 COMELEC can exercise this power only in relation to its adjudicatory or quasi-judicial functions. It cannot exercise this in connection with its purely executive or ministerial functions. If it is a pre-proclamation controversy, the COMELEC exercises quasi-judicial or administrative powers It jurisdiction over ‘contests’ (after proclamation) is in exercise of its judicial functions 172 COMELEC has exclusive jurisdiction to investigate and prosecute cases for violation of election laws. It can deputize prosecutors for this purpose. The actions of the prosecutors are the actions of the COMELEC. It can even conduct preliminary investigation on election cases falling within its jurisdiction. 173 Secs. 2(7), (8) and (9), id. 174 Sec. 5, id
n. In special cases, power to fix the election period.175
Commission on Audit
a. Examine, audit and settle all accounts pertaining to revenue and receipts of, and expenditures or uses of funds and property owned or held in trust or pertaining to government, any of its subdivisions, agencies or instrumentalities and GOCCs with original charters; b. Conduct post-audit with respect to the following: 1. Constitutional bodies, commissions, and offices granted fiscal autonomy 2. Autonomous state colleges and universities 3. GOCCs and their subsidiaries incorporated under the Corporation Code 4. Non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by law the granting institution to submit such audit c. If COA finds the internal control of audited agencies inadequate, COA may adopt measures, including temporary or special pre-audit, as necessary to correct deficiencies d. Keep general accounts of government and preserve vouchers and supporting papers pertaining thereto; e. Exclusive authority to define scope of its audit and examination, establish techniques and methods required therefor; and f. Promulgate accounting and auditing rules and regulations, including those for prevention and disallowance.176
Sec. 9, id. The functions of COA can be classified as: 1. Examining and auditing all forms of government revenues and expenditures 2. Settling government accounts 3. Promulgating accounting and auditing rules 4. Deciding administrative cases involving expenditures of public funds
3. Prohibited offices and interests Members of the Constitutional Commissions cannot: a. Hold any other office or employment. b. Engage in the practice of any profession.177 c. Engage in the active management or control of any business which in any way may be affected by the functions of his office. d. Be financially interested directly or indirectly, in any contract with, or in any franchise or privilege granted by the government, any of its subdivisions, agencies or instrumentalities, including government-owned or controlled corporations or their subsidiaries.178 4. Jurisdiction of each constitutional commission
Civil Service Commission
1. Jurisdiction on Personnel actions179 2. Original jurisdiction to hear and decide a complaint for cheating.180
Commission on Elections
1. Original jurisdiction over contests relating to elections, returns and qualifications of all elective a. Regional b. Provincial c. City officials 2. Appellate jurisdiction over contests involving a. Elective municipal officials declared by trial courts
Teaching is not included in the prohibition. Government subsidiaries can be created either by special law or under the Corporation Code, the law does not distinguish. Sequestered Private Corporations are not included in the prohibition. 179 It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure, that decisions of lower officials (in cases involving personnel actions) be appealed to the agency head, then to the CSC. The RTC does not have jurisdiction over such personal actions. (Olanda v. Bugayong, 2003) 180 The Commission has original jurisdiction and decide a complaint for cheating in the Civil Service examinations committed by government employees. The fact that the complaint was filed by the CSC itself does not mean that it cannot be an impartial judge. (Cruz v. CSC, 2001)
extravagant or unconscionable. Resolution of novel. COMELEC may issue extraordinary writs of certiorari. Elective barangay officials declared by trial courts of limited jurisdiction c. (c) those for which government has put up a counterpart fund. 2. 5. under-assessment or undercollection. 6. 4. Audit of the books. (a) those required to pay levies or government share. promulgation of rules and regulations. unnecessary. excessive. Judge Basilla. and prescription of standards governing the performance by the Commission of its powers and functions. Charges made in the audit of revenues and receipts resulting from under-appraisal. controversial. prohibition and mandamus 3. (People v. Exclusive jurisdiction to investigate and prosecute cases for violations of election laws. 7. records and accounts of public utilities as provided by law. (b) those funded by donations through the government. Determination of policies.of general jurisdiction b. 179 SCRA 87) 182 See Powers and Functions. People. or 181 De Jesus v. Visitorial power over non-governmental organizations (1) subsidized by the government. complicated or difficult questions of law relating to government accounting and auditing. Money claims due from or owing to any government agency. irregular. Disallowance of expenditures or uses of government funds and properties found to be illegal. 3. supra 40 . 120 SCRA 760 However.181 Commission on Audit:182 Jurisdiction shall extend over but not limited to the following cases and matters: 1. the COMELEC may validly delegate this power to the Provincial Fiscal [Prosecutor].
Retention of money due to a person for satisfaction of his indebtedness to the government. Authorization and enforcement of the settlement of accounts subsisting between agencies of the government. 14. 12. Checking and audit of all property or supplies of the government agency. In coordination with appropriate legal bodies. Constructive distraint of property of any accountable officer with shortage in his accounts upon a finding of a prima facie case of malversation of public funds or property against him. 15. not only in the performance of their adjudicative function. Power to require the submission of papers relative to government obligations. Review of final orders. 11. 16. Opening and revision of settled accounts. but even in the performance of their other functions183 through the special civil action of certiorari. collection of indebtedness found to be due a government agency in the settlement and adjustment of its accounts by the Commission 5. resolutions and decisions a. 8. of any settled claim or liability to any government agency. the courts can review acts of all administrative agencies. Seizure by the Auditor of the office of the local treasurer found to have a shortage in cash. Rendered in the exercise of Administrative Functions Given the new definition of judicial power as including the power to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. 183 quasi-legislative. Rendered in the exercise of Quasi-Judicial Functions b. 9. 10. Compromise or release in whole or in part. administrative 41 .(d) those entrusted with government funds or properties. 13.
7902 The certiorari jurisdiction of the Supreme Court is limited to decision rendered in actions or proceedings taken cognizance of by the Commissions in the exercise of their adjudicatory or quasijudicial powers. the party adversely affected thereby shall file a petition for review on certiorari under Rule 45 of the Rules of Court. 42 . (It does not refer to purely executive powers such as those which relate to the COMELE C’s appointing power.) 186 Reyes v. From the decision of the CA. 184 185 pursuant to R. Concept and Application Police Power The power of promoting public welfare by restraining and regulating the use of liberty and property. 1995. or with grave abuse of discretion amounting to lack or excess of jurisdiction. 1995 187 Set of prescriptions setting forth the fundamental civil and political rights of the individual.186 Bill of Rights187 1. Fundamental Powers of the State a. provides that final resolutions of the CSC Shall be appealable by certiorari to the CA within 15 days from receipt of a copy thereof. Only when COA acts without or excess in jurisdiction. the SC may entertain a petition for certiorari under Rule 65. Commission on Audit Judgments or final orders of the Commission may be brought by an aggrieved party to the Supreme Court on certiorari under Rule 65. Similarly.A. Hence. RTC.Civil Service Commission Administrative Circular 1-95184 which took effect on June 1. actions taken by the COMELEC as prosecutor come under the jurisdiction of the trial court which has acquired jurisdiction over the criminal case.185 Commission on Elections Only decision en banc may be brought to the Supreme Court by certiorari since Article IX-C says that motions for reconsideration of decisions shall be decided by the Commission en banc. and imposing limitations on the powers of government as a means of securing the enjoyment of those rights. questions arising from the award of a contract for the construction of voting booths can be brought before a trial court.
2. Necessity – when exercised by: Congress – political question.when: a. 190 Republic v. Power of Imminent Domain 1. as distinguished from those of a particular class. within territorial limits – for LGUs except when exercised to protect water supply. and not unduly oppressive on individuals.Power of Eminent Domain This is also known as the power of expropriation. express grant by law. for the support of government and for all public needs. 2. Lawful Subject – the interests of the public in general. it is described as the highest and most exact idea of property remaining in the government that may be acquired for some public purpose through a method in the nature of a compulsory sale to the state. PLDT. there is practical destruction or a material 188 189 or limitations When exercised by a delegate: 1. Requisites188 for Valid Exercise Police Power189 1. b. Delegate – justiciable question 2. and 3. 26 SCRA 620 43 . may include services190 3. Power of Taxation Taxes are enforced proportional contributions from persons and property levied by the state by virtue of its sovereignty. Taking . Private property – all private property capable of ownership may be expropriated. Lawful Means – the means employed are reasonably necessary for the accomplishment of the purpose. b. owner actually deprived or dispossessed of his property. Taxation is the method by which these contributions are exacted. require the exercise of the power. except money and choses in action. must not be contrary to law.
191 Requisites: i. July 2. Power of Taxation Inherent limitations: a. Public use . Public purpose.impairment of value of property. C. that only a few would actually benefit from the expropriation of the property foes not necessarily diminish the essence and character of public use. 2002) 193 Formula: -. 58 SCRA 336). expropriator must enter a private property. Castelvi.191 4.R. but in no case will the consequential benefits exceed the consequential damages Fair market value – the price that maybe agreed upon by parties who are willing but are not compelled to enter into a contract of sale. and d. minus the consequential benefits.fair market value of the property. property must be devoted to public use or otherwise informally appropriated or injuriously affected. Due process of law – the defendant must be given an opportunity to be heard. v. substantial. to which must be added the consequential damages. Consequential damages – consist of injuries directly caused on the residue of the private property taken by reason of expropriation 44 .compensation is qualified by the word just to convey that equivalent must be real. It is well within the rights of the condemnor as owner to alter and decide its use so long as it still for public use. iii. No. owner is deprived of ordinary use of his property. supervision and control of his property.192 5. iv. full and fair. ( Republic vs. whichever came first. G. 252 SCRA 412 Once expropriated change of public use is of no moment. ii. the value of the property must be determined either as of the date of the taking of the property or the filing of the complaint. Court of Appeals. c. Just compensation . utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property (Republic v. 146587.. owner is deprived of jurisdiction. entry must be more than a momentary period.193 6. entry must be under a warrant or color of authority.has been broadened to include not only uses directly available to the public but also those which redound to their indirect benefit.A. 192 Manosca v.
b. Due process of law. h. charitable and educational purposes. Any doubt as to the applicability of a tax exemption granted to a person must be resolved against the exemption. e. Any doubt regarding the taxability of any person under a valid law must be resolved in favor of that person and against the taxing power. tonnage and wharfage dues. Origin of appropriation. and tariff bills. import and export quotas. Equal protection of law. d. equitability. Tax exemption of properties actually. Non-delegability of power. 194 Any question regarding the constitutionality of a tax measure must be resolved in favor of its validity. International comity. e. c. directly and exclusively used for religious. Exemption of government from taxation. j. Non-imprisonment for non-payment of poll tax. g. and progressivity of taxation. f. 45 . Non-impairment of contracts. d. revenue. b. Constitutional limitations:194 a. k. Uniformity. Territoriality or situs of taxation. i. c. Non-infringement of religious freedom. Non-impairment of the Supreme Court’s jurisdiction in tax cases. Majority vote of all members of Congress required in case of legislative grant of tax exemptions. Delegation of legislative authority to the President to fix tariff rates.
Inherent in the State. Private Government Entities Property taken and purpose Usually noxious. Exercised/primarily/by/the/Legislature Differences Basis Police Power Eminent Domain Property rights only Taxation Property rights only Rights regulated Liberty &property rights Exercised by Government Government. Methods by which State interferes with private property 4. Presuppose equivalent compensation 5. Including grants. or contributions to educational institutions. Tax exemption of revenues and assets of. donations. exercised even without need of express constitutional grant 2. Delegation 46 . Similarities and Differences Similarities 1.l. public purpose Wholesome: public Purpose Compensation Intangible. endowments. Necessary and indispensable. noxious purpose Wholesome. altruistic Full and fair feeling of contributing to Equivalent of the public good the property taken Protection given or public improvements d. State cannot be effective without them 3. c.
No. local government units. What it does is to declare some forbidden zones the priv ate sphere inaccessible to any power holder. G. PAL. 458 and 468. 168081.200 In the absence of governmental interference. 20 1996 47 . 28 (2). administrative bodies.R. Art. Oct. who had forc ibly taken from his cabinet and presented as evidence against him documents and private 195 196 inherently vested in the Legislature Sec.201 However. his wife. Put differently. X 199 Sec. 18. 81561. CA.R. Feb. No. and even private enterprises performing public services. 391.A. The Bill of Rights guarantee governs the relationship between the individual and the State. the liberties guaranteed by the Constitution cannot be invoked against the State. the President when granted delegated tariff powers199 2. 5. 7160. VI 200 People v. the Bill of Rights i s not meant to be invoked against acts of private individuals. Its concern not the relation between private individuals. the Supreme Court. R.R. R. No. 447. 2008 202 in Zulueta v. Jan. the liberties guaranteed by the Constitution cannot be invoked/by/private individuals. 107383. Marti. G.A. Art. Local government units exercise the power under the general welfare clause196 and under Secs. 7160. Power of Taxation Congress may validly delegate this power to local government bodies198 and to a limited extent.197 Power of Eminent Domain Congress may validly delegate this power to the President. G.Police power195 Congress may validly delegate this power to the President. Private Acts and the Bill of Rights In the absence of governmental interference.202 where the husband invoked his right to privacy of communication and correspondence against a private individual. 1991 201 Yrasegui vs. see Reference 197 See Reference 198 Sec. to administrative bodies and to lawmaking bodies of local government units. 16. 17.
upholding the husband’s r ight to privacy. 48 . held these papers inadmissible in evidence.correspondence.
Due Process203 No person shall be deprived of life. Procedural and Substantive Due Process Procedural Due Process Substantive Due Process Due process was understood to relate chieflyThe due process clause must be to the mode of procedure which interpreted both as a procedural and a government agencies must follow. liberty or property without due process of law. G. Statutory Due Process While found in the Labor Code and Implementing Rules protects employees from being unjustly terminated without just cause after notice and hearing. which proceeds upon inquiry and renders judgment only after trial (Darmouth College v. III. color or nationality. 2004 49 . b. civil or administrative Proceedings. No.R. 4 Wheaton 518). G. government’s law and rule-making power. No. 158693. NLRC.3. it was substantive guarantee. It must be a understood as a guarantee of procedural guarantee against the exercise of arbitrary fairness. Its essence is a “law which hears power even when the power is exercised before it condemns”.204 a. 1 That which hears before it condemns. Thus. May 5.R. Sec. it serves as a restriction on quasi-judicial agencies of government.205 203 Art. Cayat. Constitutional and Statutory Due Process Constitutional Due Process Protects the individual from the government and assures him of his right s in criminal. 204 People v. restriction on actions of judicial and Thus. November 17. it serves as a according to proper forms and procedure. Relativity of Due Process The guaranties of due process are universal in their application to all persons within the territorial jurisdiction. c. Woodward. Private corporations are within the scope of the guaranties insofar as their properties are concerned. L‐45987. without regard to any differences of race. The word “person” includes aliens. 1939 205 Agabon v.
Property has an intimate relation with life and liberty.” permitting government regulation only “with narrow specificity.” Property and property rights can be lost through prescription. of majorities. but human rights are imprescriptible. as well as supremely precious in our society” and the “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.e. Vera. an unavoidable question (People v. This means (1) a party with a personal and substantial interest. Protection of property was a primary object of the social compact and that the absence of such protection could well lead to anarchy and tyranny. (3) a constitutional question raised at the earliest possible time. Because these freedoms are “delicate and vulnerable. 66 Phil 56 (1937) 50 . rather than substantial governmental interest and on the absence of less Laws are upheld if they The substantiality of the rationally further a legitimate governmental interest is governmental interest. (2) an appropriate case. If human rights are extinguished by the passage of time. then the Bill of Rights us a useless attempt to limit the power of government and ceases to be an efficacious shield against tyranny of officials.” they “need breathing space to survive. Hierarchy of Rights The primacy of human rights over property rights is recognized.d. seriously looked into and without courts seriously the availability of less inquiring into the restrictive alternatives are 206 Judicial review can only be exercised in an actual case and controversy. i. Property is not a basic right. and (4) a constitutional question that is the very lis mota of the case. Judicial Standards of Review206 Deferential review Intermediate review Strict scrutiny The focus is on the presence of compelling. of the influential and powerful. Property is an important instrument for the preservation and enhancement of personal dignity. and of oligarchs. Property is as important as life and liberty – and to protect their (poor) property is really to protect their life and their liberty e.
Void-for-Vagueness Doctrine It holds that a law is vague when it lacks comprehensive standards that men of common intelligence must necessarily guess at its common meaning and differ as t o its application. and examining the alternative means by which the objectives could be achieved restrictive means for achieving that interest. G.207 f. the equality of all persons before the law. Feb. “All person or things similarly situated should be treated alike. Under it. 26. fair notice of what conduct to avoid 2. It violates due process for failure to accord persons. 24. It leaves law enforcers an unbridled discretion in carrying out its provisions. No. The equal protection clause is a specific constitutional guarantee of the Equality of the Person.R. each 207 208 Separate opinion of Justice Mendoza in Estrada v. 2001 209 Art. de la Piedra. 148965. Equal Protection Nor shall any person be denied the equal protection of the laws. No. Sandiganbayan.209 a.” This clause does not only prohibit the State from passing discriminatory laws but it also commands the State to pass laws which positively promote equality or reduce existing inequalities.substantiality of such interest considered. In such instance.R. G. The equality it guarantees is “legal quality or the equality of all persons before the law. Jan. 2002 People v. III. the statute is repugnant to the Constitution because: 1.208 4. especially the parties targeted by it. 128777. Sec. The equality guarantees the “legal equality or as it is usually put. Concept The Equal Protection Clause is a specific constitutional guarantee of the Equality of the Person.1 51 . both as to rights conferred and responsibilities imposed”.
212 Black’s Law Dictionary.212 The focus is on the presence of compelling. Feb. rather than substantial governmental interest and on the absence of less restrictive means for achieving that interest. 213 Separate opinion of Justice Mendoza in Estrada v. Requisites for Valid Classification 1. Standards of judicial review 1) Rational Basis Test Where the classification needs only to be related to a legitimate state interest.R.213 3) Intermediate Scrutiny Test 210 The equality guaranteed however. 9th Ed. Must apply equally to all members of the same class c. and that the burden is upon the government to prove that the classification is necessary to achieve a compelling State interest and that it is the less restrictive means to protect such interest. Sandiganbayan. It does not deny to the state the power to recognize and act upon factual differences between individuals and classes. Rational basis is the most deferential of the standards of review that courts use in due-process and equal-protection analysis.211 2) Strict Scrutiny Test A legislative classification which impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class is presumed unconstitutional. the state must establish that it has a compelling interest that justifies and necessitates the law in question. 2002 52 .26. 148965. It recognizes that inherent in the right to legislate is the right to classify. G. “is not disembodied equality”. which does not treat the person differently because of who he is or what he is or what he possess.210 b. 211 Black’s Law Dictionary.individual is dealt with as an equal person in the law. Substantial distinction 2. 3. Under strict scrutiny. No. Not limited to existing conditions only 4. 9th Ed. Germane to the purpose of the law-the distinction which must make for real differences should have reasonable relation to the purpose of the law.
it protects the privacy and sanctity of the person himself. 2 ). b. including aliens whether accused of a crime or not. III. although they may be required to open their books of accounts for examination by the state in the exercise of police and taxing powers. Warrant Requirement (1) Requisites 214 215 such as gender or legitimacy Black’s Law Dictionary. 9th Ed.214 the classification must be substantially related to the achievement of an important governmental objective. Sec. Under the standard. Artificial person are also entitled to the guarantee. 216 “The right of the people to be secure in their persons. papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Available to all persons. The constitutional guarantee is not a prohibition of all searches and seizures but only of “unreasonable” searches and seizures. 53 . Concept Not just a circumscription of the power of the state over a person’s home and possessions.” (Art.215 5.Where the government must show that the challenged classification serves an important State interest and that the classification is substantially related to that interest. It is a guarantee of the right of the people to be secure in their “persons…against unreasonable searches and seizures”. if a statute contains a quasi-suspect classification. It is therefore also a guarantee against unlawful arrests and other forms of restraint on the physical liberty of the person. Searches and Seizures216 a. houses. More important. and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized.
Veloso. he finds no probable cause.That the said person had an actual intention to relinquish the right 54 . 42 P 886 that it is invariably recognized that the warrant for the apprehension of an unnamed party is void “except those causes where it contains a descriptio personae such as will enable the officer to identify the accused. a warrant for the arrest of fifty John Does is of the nature of a general warrant which does not satisfy the requirement of particularity of description. the judge is not required to personally examined the complainant and his witnesses and on the basis thereof issue a warrant of arrest. it should be emphasized that what is required is not proof beyond reasonable doubt but merely probable cause. ( Pangandaman v. But in either case. III. Thus. however. Probable Cause217 2. 233 SCRA 439) In the preliminary examination for the issuance of a warrant of arrest. 218 Art. When the right is voluntarily waived220 217 Such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof Unlike proof of probable cause for warrant of arrest.That the persons involved had knowledge. a limit to John Doe warrants. (Cruz Jr. the judge is not required to personally examine the complainant and his witnesses. He may also rely on the prosecutor’s report or if on the basis thereof.That the right exists 2. 167 S 393) Where the court upheld that in the exercise of the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of the probable cause for the issuance of the warrant of arrest.1. It is sufficient that the judge personally evaluates the report and supporting documents submitted by the prosecution in determining probable cause. V People. Warrantless Searches Eight Instances of Valid Warrantless Searches and Seizures: 1. In satisfying himself of the existence of the probable cause for the issuance of the warrant of arrest. probable cause for a search warrant need not point to a specific offender. either actual or constructive of the existence of such right 3. Sec. Particularity of Description219 c. which was not indicated in the warrant was held unlawful. (Soliven V Makasiar.” The description must be sufficient to indicate clearly the proper person upon whom the warrant is to be served. Must refer to one Specific offense 4. Evidence required to establish guilt is not necessary. the court is not tasked to review in detail the evidence submitted during the preliminary investigation. he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at conclusion as to the existence of probable cause. Casar 159 S 599) The “scatter-shot warrant” charging more than one offense was declared null and void and the seizure of the money. There is. 2 What the constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of the probable cause. Determination of probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce218 3. 219 The court concluded in the case of People vs. 220 Requisites of Valid Waiver 1.
a search warrant could lawfully be dispensed with. (Terry v. Warrantless Arrests “A peace officer or a private person may. 225 Under this exception. Rule: The discovery must be “Inadvertent” Thus. Search made within the interior of territory is justified only if there is probable cause. (People v. 226 Where the SC deemed it a bounded duty. The courts in the surrounding areas were obviously closed and for that matter. 65 SCRA 336) 224 Rule: Vehicles/automobiles may be searched only at borders or constructive borders. de Gracia. Inspection of buildings and other premises for the enforcement of fire. because the seizure would be an incident to a lawful arrest. When there is valid reason to “stop-and-frisk”221 3. July 6. 2000 Revised Rules on Criminal Procedure: “A person lawfully arrested maybe searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant”. interrogate him and pat him for weapon(s). 223 Where a fishing vessel found to be violating fishery laws maybe seized without a warrant on two grounds: firstly. There was general chaos and disorder at that time because of the simultaneous and intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. The raiding team had no opportunity to apply for and secure a search warrant from the courts. because they are usually equipped with powerful motors that enable them to elude pursuit and secondly. sanitary and building regulations 8. Arca. Ohio 392 US 1) 222 Rule: Apply strictly Rule 126. Sec. ( Roldan v. without a warrant. to delve into the legality of the warrantless search conducted by the raiding team. Where prohibited articles are in plain view225 7. Under such urgency and exigency of the moment. The instant case falls under one of the exceptions to the prohibition against warrantless search. Search of Vessels and Aircrafts223 5. Search and Seizure under exigent and emergency circumstances226 9.2. Conduct of “areal target zoning” and “saturation drive” in the exercise of military powers of the President 10. Where the search and seizure is an incident to a lawful arrest222 4. in light of advertence thereto by the parties. the objects “falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and maybe introduced in evidence”. the building and houses therein were deserted. if an officer encounters prohibited objects only after poking around. Visual search at checkpoints d. 1994) 55 . Search of Moving Vehicles/Automobiles at borders or constructive borders 224 6. the discovery would not be inadvertent. 13. arrest a person: 221 The vernacular designation of the right of a police officer to stop a citizen on the street.
Drug. (Morano v. They should know for a fact that a crime was committed. Since the offense happens right before the eyes of the officer. but they must have direct knowledge or view of the crime right after its commission. It is within the prerogative of educational institutions to require. 2000 Revised Rules of Criminal Procedure 230 Where the SC ruled that the constitutional provision against unreasonable searches and seizures does not require judicial intervention in the execution of a final order of deportation issued in accordance with law. Burgos) 228 Otherwise known as the rule on hot pursuit arrests. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested committed it228 3. in his presence. It contemplates an order of arrest in the exercise of judicial power as a step preliminary to prosecution for a given offense of administrative action. Vivo. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another. Alcohol and Blood Tests A law requiring mandatory drug testing for students of secondary and tertiary schools is constitutional. Also. 20 S 562) 56 . The requirement for probable cause does not extend to deportation proceedings. not as a measure indispensable to carry out a valid decision by a competent official.1. 5. cannot be for purpose of investigation. such as legal order or deportation issued by the Commission on Immigration in pursuance of a valid legislation. In effecting this type of arrest. 229 e. Administrative Arrests230 Warrant of Arrest may be issued by administrative authorities but only for purpose of carrying out a final finding of a violation of a law. it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. The fact of the commission of the offense must be undisputed. the suspect. There is an administrative arrest as an incident to deportation proceedings. the arresting officers themselves must have personal knowledge of facts showing that the person to be arrested. as a condition for admission. A buy-bust operation is a form of entrapment. He however neither instigates nor induces the accused to commit a crime because in these cases the seller has already decided to commit a crime. there is no need for a warrant either for the seizure of the goods or for the apprehension of the offender (People v. The method is for an officer to pose as a buyer. When. Rule 113. the person to be arrested has committed. Law enforcement officers may not actually witness the execution of acts constituting the offense. f. A crime must in fact or actually have been committed first. is actually committing or is attempting to commit an offense227 2. 229 Sec. performed the criminal act. compliance with reasonable scho 227 The most common application of this in flagrante delicto rule is the buy-bust operation conducted to enforce the Dangerous Drugs Act.
Given that the drug testing policy for employees and students for that matter under R. In the criminal context. it is subject to fair. where a lot of people could gain access to it. that is public communication. “reasonableness” is the/touchstone of the validity of a government search or/intrusion.232 6. A law requiring mandatory drug testing for officer and employees of public and private offices is constitutional. DDB and PDEA. isn't private to a certain group. and equitable requirements. 2. If you say something in a public setting. Nov. Privacy of Communications and Correspondence a. And whether a sear ch at issue hews to the reasonableness standard is judged by the balancing of the gover nment mandated intrusion on the individual’s privacy interest against the promotion of some compelling state interest. To be sure. No.R. As the warrantless clause231 is couched and as has been held. reasonable. if you post a comment on a message board that anyone can access. Private and Public Communications Private Communications Public Communications An exchange of information between It usually means communication that two individuals in a confidential relationship. 3. 57 . reasonableness requires showing probable cause to be personally determined by a judge.” the probable cause standard is not required or even practicable. III of the Constitution SJS v. 2008 233 So. G.ol rules and regulations and policies. 157870.A. 9165 is in the nature of administrative search needing what was referred to in Veronia case as “swift and informal procedures.233 231 232 Sec. the right to enroll is not absolute. that is public communication. Art.
235 censorship The constitution. and rebels. 7. constitutional guaranties like liberty of the press are superior over legislative acts or law. or of a private individual or entity engaged in the gathering. Writ of Habeas Data It is a remedy available to any person whose right to privacy in life. insurrectionists. he believes that public safety or order so requires. 3. Movie Censorship. liberty or security is violated or threatened by an unlawful act or omission of a public official or employee. the individual would hesitate to speak for fear that he might be held to account for his speech. when allowed 1. Concept and Scope (1) Prior Restraint235 Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Therefore. 58 . and may be properly 234 Sec. Public order and safety . family. Freedom of Expression a. Art. although not placed on the same level as press censorship. Its most blatant form is a system of licensing administered by an executive officer. is exempt from the previous restraints by the executive and legislative branches. III When intrusion is made without a judicial order. home and correspondence of the aggrieved party.the security of human lives. the freedom is not absolute. The guarantee of freedom of expression also means a limitation on the power of the state to impose subsequent punishment. However. also belongs to this type of prior restraint. An executive officer can order intrusion when in his judgment and even without prior court approval. as the paramount law. Upon lawful order of the court 2. (2) Subsequent Punishment Without this assurance. When public safety or order requires otherwise as prescribed by law234 c. liberty and property against the activities of invaders.b. collecting or storing of data or information regarding the person. Intrusion. or that he might be provoking the vengeance of the officials he may have criticized. it would have to be based upon a government official’s assessment that public safety and order demand such intrusion.
and they are not subject to the strictest form of judicial scrutiny rather only an intermediate approach‐ somewhere between the rationality that is required of a law and the compelling interest standard applied to content‐ based restrictions. omission. status. and announcing that he would file a bill for its reorganization. the state may validly impose penal and/or administrative sanctions. Accordingly. (In re: Atty. validity.regulated in the interest of the public. real or imaginary. or to blacken the memory or one who is dead. Jurado) A Senator was punished for contempt for having attacked a decision of the Supreme Court which he called incompetent and narrow minded. Libel236 2. such as in the following: 1. Criticism of Official Conduct238 b. Obscenity237 3. or contempt of a natural or juridical persons. or of a vice or defect. or circumstance tending to cause the dishonor. or any act. Content-Based and Content-Neutral Regulations Content‐based restraint Content‐neutral regulation They are given the strictest scrutiny Substantial governmental interest is required for thei in light of their inherent and r invasive impact. conditions. embarrass or obstruct the court and constitutes a clear and present danger to the administration of justice is not protected by the guarantee of press freedom and punishable by contempt. discredit. (In re Sotto) 59 . (1) Tests (2) Applications Clear and Present Danger Test 236 Whether the words are used in such circumstance A public and malicious imputation of a crime. 237 The determination of what is obscene is a judicial function 238 Where the court said that a publication that tends to impede.
All it requires. Sandiganbayan. 240 Balancing of Interests test When particular conduct is regulated in the interests of public order. Another restrictions for permissible limitation on freedom of speech and of the press is of the “balancing of interests test”. conditional. 1919 Four instances where clear and present danger test applies: a. the constitutionality of a statute curtailing speech is determined in the same manner that the constitutionality of any statute is determined. In other words. a member of the Philippine bar who imposed with a penalty of indefinite suspension for imposing charges of impartially and corruption to the Supreme Court.and of such a nature as to create a clear and present danger that they will bring about the substantive evils that the state has the right to prevent. the accepted rule was that speech may be curtailed or punished when it “creates a dangerous tendency which the state has the right to prevent”. the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. It is sufficient if the natural tendency and the probable effect of the utterance were to bring about the substantive evil that the legislative body seeks to prevent. then such words are punishable. release of information that endangers free trial The substantive evil must be extremely serious and the degree of immense extremely high before utterances can be punished. 170 SCRA 1) 60 . Thus. Cabansag V. and the regulations result in an indirect. for speech to be punishable. namely by answering the question whether a statute is “reasonable. 240 In the early stages of Philippine jurisprudence. which requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation (Zaldivar vs.239 Dangerous Tendency Test If the words uttered create a dangerous tendency of an evil which the State has the right to prevent. US.241 239 Schenck v. The court held that the “clear and present danger rule” is not the only test which has been recognized and applied by the courts. is that there be a rational connection between the speech and the evil apprehended. Fernandez.” That if the words uttered create a dangerous tendency of an evil which the state has the right to prevent. speeches that provoke a hostile audience reaction c. speeches out of contempt d. under this rule. partial abridgment of speech. “Present” refers to time-imminent and immediate danger. 249 US 47. 102 Phil 152 241 This is a resolution for reconsideration of Gonzales. “Clear” mean causal connection between danger of substantive evil arising from utterance questioned. It is a question of proximity and degree. This standard has been labeled the “Dangerous Tendency Rule”. speeches that advocate dangerous ideas b. danger must not only be probable but very likely inevitable.
and therefore. It is within the constitutional power of the Government b. in which the plaintiff alleges that the statute is always.O’Brien Test A governmental regulation is sufficiently justified if: a. Grave‐but‐Improbable Danger test This test was meant to supplant the clear and present danger test. it is not unconstitutional. Facial Challenges and the Overbreadth Doctrine Facial Challenge A manner of challenging a statute in court. Direct Incitement test It criticizes the clear and present danger test for being too dependent on the specific circumstances of each case. c. as applied to him. and under all circumstances. 61 . If the incidental restriction on alleged freedom is no greater than is essential to that interest. void. unconstitutional. but it might be if applied to others not before the Court whose activities are constitutionally protected. It furthers an important or substantial governmental interest c. The governmental interest is unrelated to the suppression of free expression d. Overbreadth Doctrine Permits a party to challenge a statute even though.
Public Service Commission of NY. The advertising industry is impressed with public interest. 11. Only Filipino citizens or corporations or associations at least seventy per centum (70%) of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. v. cooperatives or associations.246 242 243 supra Sec. and shall be regulated by law for the protection of consumers and the promotion of the general welfare. Art.243 f. It is not more extensive than is necessary to protect that interest.d. It must not be false or misleading. No combinations in restraint of trade or unfair competition therein shall be allowed. XVI 244 such as advertising and marketing 245 Black’s Law Dictionary. 2. 246 Advertisement of goods or of services is an example To enjoy protection: 1. and all the executive and managing officers of such entities must be citizens of the Philippines. Tests242 e. 9th Ed. State Regulation of Different Types of Mass Media The ownership and management of mass media shall be limited to citizens of the Philippines. Government has a substantial interest to protect. wholly-owned and managed by such citizens. It should not propose an illegal transaction. ( Central Hudson Gas and Electric Corp. 447 US 557) 62 . The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof.245 Communication which no more than proposes a commercial transaction. The regulation directly advances that interest. or to corporations. and 2. May be regulated if: 1. Commercial Speech Communication244 that involves only the commercial interests of the speaker and the audience. and 3.
250 The common example is that of demonstrators251causing a speech252 to be terminated in order to preserve the peace. 2006. Freedom of Religion a. h. parades. Art. 6. 8. Government Speech Government Speech Private Speech Where the/government may advance or The right of a person to freely speak restrict its own speech in a manner one’s mind is a highly valued freedom that would clearly be forbidden were it in a republican and democratic society. II. 568. 1942) 251 reacting party 252 given by the acting party 63 . Maynard in 1971 Ashcroft v. It may be in the guise of a permit requirement in the holding of rallies. 234 (2002)) 249 The term was coined by University of Chicago professor of law Harry Kalven. or demonstrations conditioned on the payment of a fee computed on the basis of the cost needed to keep order in view of the expected opposition by persons holding contrary views. (Gorospe.S.248 247 regulating the speech of private citizen. 1) Concept and basis The State cannot set up a church. aid all religion. Private v. on the separation of Church and State. Nationalist Movement. Non-Establishment Clause Prohibits the establishment of any religion. citing Forsyth County v. Heckler’s Veto249 Occurs when an acting party's right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party's behavior. or prefer one religion over another nor force nor influence a person to go to or remain away from Church against his will or force him to profess a belief or disbelief in any religion.g.S. 315 U. Free Speech Coalition. The intermediate views are chiefly two: (1) the non-establishment clause prohibits only direct support of institutional religion but not support indirectly accruing to churches 247 248 doctrine was implied in Wooley v. 250 The term Heckler’s Veto was coined by University of Chicago professor of law Harry Kalven. nor pass laws which aid one religion. 535 U. This reinforces Sec.
There are two: voluntarism and insulation of the political process from interfaith dissension. see Bishop of Nueva Segovia vs. what non-establishment calls for is government neutrality in religious matters. minister c. except those established by religious groups and mission c. Optional religious instruction in public or ecclesiastic. XIV 256 Sec. or of any priest. therefore. 2. Government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension. Art. Art.260 elementary and high schools: at the option expressed in writing by the parents or guardians. Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension.254 Acts not permitted a. Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension. Provincial Board. directly and exclusively used for religious purposes.253 2) Acts permitted and not permitted by the clause Acts permitted a.and church agencies through support given to members. (2) both direct and indirect aid to religion are prohibited but only if the support involves preference of one religion over another or preference of religion over irreligion. 4 (2). religious instruction taught within regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong without additional cost to the government256 253 In effect. 352 255 Sec. A religious sect or denomination cannot be registered as a political party. id. Citizenship requirement of ownership the religious sector. there is substantial agreement on the values non-establishment seeks to protect.258 b. No sectoral representatives from b. While there is no unanimity in non-establishment as a political principle. Such government neutrality may be summarized in four general propositions: 1. VI. 3. 28 (3). Exemption from taxation of properties actually. Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension. 254 Sec. 3 (3). Cases/Doctrines (not in violation of non-establishment clause): 64 . 51 Phil. Prohibition against the use of public boards255 money or property for the benefit of any religion.259 of educational institutions. 4.
2. for the purpose of preserving it as a historical landmark.iv. Schempp) Salary payments and reimbursements for secular textbooks and other instructional materials under a system involving close government supervision were invalidated (Lemon v. ( Garces vs. and 3. as it is a socio-religious affair. or in a government-owned orphanage or leprosarium. Kurtzman) 257 Sec. Ruiz) 258 Sec. then any activity intended to facilitate the worship of the patron saint. Art. 29 (2). (School District v. Appropriation allowed where the minister or ecclesiastic is employed in the armed forces. CA) There is nothing unconstitutional or illegal in holding a fiesta. (Manosca vs. Free Exercise Clause The expropriation of the birthplace of Felix Manalo. Art. Not promote or favor any set of religious beliefs or religion generally. IX-C 259 Sec. 2 (5). 5. VI 261 “entangled” 65 . such as the acquisition and display of his image. was upheld as for “public use” and any benefits that would reap the adherents of Iglesia would only be incidental to the public historical purpose. in a penal institution. VI 260 Cases/Doctrines (in violation of non-establishment clause): State sponsored Bible readings and prayers in public schools have been invalidated for violations of Sec. Art. Estenzo) Issuance of religious commemorative stamps as giving merely incidental benefits to religion is upheld. (Aglipay vs. Have a secular purpose. cannot be branded as illegal. a government act or policy must: 1. and having a patron saint for the barrio. Not get the government too closely involved261 with religion. 5 (2). To pass the test.257 3) Test Lemon test It is a test to determine whether an act of the government violates the non-establishment clause. b. founder of Iglesia ni Kristo.
it becomes subject to government regulation. a law will be upheld only if the government’s interest is strong enough. Aug.com 66 . 2003 265 uslegal. 491 SCRA 1. cannot inquire into a person’s religious pretensions. belief flows over into action. The courts should look into the sincerity of the religious belief without inquiring into the truth of the belief. the government’s interest is balanced against the individual’s constitutional right to be free of law. while it may look into the good faith of a person.265 262 The absoluteness of the freedom to believe carries with it the corollary that the government. ii. Freedom to act according to one’s beliefs – subject to state regulation c. The state has to establish that its purposes are legitimate and compelling iii. The state has the burden to justify any possible sanction. Men may believe what they cannot prove. Freedom to Believe – absolute262 2. The state used the least intrusive means possible.Guarantees the free exercise of religion. They may not be put to the proof of their religious doctrines or beliefs. Test Clear and Present Danger Test263 Compelling State Interest Test It is the test used to determine if the interests of the State are compelling enough to justify infringement of religious freedom. This involves three (3) steps: i. 4. The moment however. However. 263 supra 264 Estrada vs. Under this test. Embraces two (2) concepts: 1.264 It refers to a method of determining the constitutional validity of a law. Escritor.
Impairment of this liberty. the compelling-state-interesttest is mostly applied in all voting rights cases and equal protection cases. all auxiliary writs. 268 Liberties guaranteed: 1. moreover. 2. The constitution itself sets down the measure of allowable impairment: necessity “in the interest of national security. Liberty of Abode and Freedom of Movement267 “The liberty of Abode and of changing the same within the limits prescribed by law shall not be impaired. It is also applied when a disputed law requires strict scrutiny. public health. Supp. Ohio 1970). Limitations Liberty of abode Upon lawful order of the court and within the limits prescribed by law Right to travel 1. In the interest of national security. Brown. but the appropriate executive officer is not assumed with arbitrary discretion to impose limitations. public safety or public health” as well as explicit provisions of statutory law or the Rules of Court. public safety. Any person on bail. He can impose limits only on the basis of “national security. public safety or public health” and “as may be provided by law”. 319 F. as may be provided by law.freedom to travel both within the country and outside 269 A person admitted to bail may be prevented by a court from leaving the country as this is a necessary consequence of the function of a bail bond which is to secure a person’s appearance when needed. must be subject to judicial review as even measures taken by the executive are subject to judicial review. Liberty of Abode . When by law jurisdiction is conferred on a Court or judicial officer. 862 (N.freedom to choose and change one’s place of abode 2. process and other means necessary to carry it into effect may be employed by such court or officer. v. The right to travel should not be “construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them.D. CA) 67 . Thus. Right to Travel . for instance. 266 (as to service in the armed forces or to bearing arms) 267 It may be impaired even without the court order. a person who is out of bail may be prevented from leaving the country. (Manotoc Jr.268 a.269 In Howe v.266 9. it was held that.Conscientious Objector Test Test to determine if objection is based on moral or or religious grounds.
When by law jurisdiction is conferred on a court or judicial officer. Hold departure order is applicable to those with criminal charges and facing prosecution. upon the request of the Secretary of Justice. but the appropriate executive officer is not assumed with arbitrary discretion to impose limitations. Against the accused. when the adverse party is the government or any of its agencies or instrumentalities. 2. or in the interest of national security. for instance. public safety or public health” as well as explicit provisions of statutory law or the Rules of Court. or to regulate immigration. or any case before a quasi-judicial or administrative agency of the government. He can impose limits only on the basis of “national security. CA.” Impairment of this liberty. The right to travel should not be “construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them. all auxiliary writs. children of the parents facing trial for Legal Separation. It emphasized that a court has the power to prohibit a person admitted to bail from leaving the Philippines. the Senate President or the House Speaker for the Legislature. process and other means necessary to carry it into effect may be employed by such court or officer. Thus. respondent or witness in a civil or labor case pending litigation.270 1) Watch-list and hold departure orders Watch list is a list of persons or things to watch for possible action in the future. Head of the Department of Government. This is a necessary consequence of the nature and function of a bail bond. Right to travel It may be impaired even without the court order. irrespective of nationality. public health or safety is at stake. must be subject to judicial review as even measures taken by the executive are subject to judicial review. Annulment or Declaration of Nullity of Marriage may not be allowed to leave the Philippines while the case is ongoing without prior approval of 68 . a person who is out of bail may be prevented from leaving the country. Against the alien whose presence is required either as a defendant. head of the constitutional body or commission. public safety or public health. even if the accused is out of bail. Where the issue involves is whether a person facing a criminal indictment and provisionally released on bail have an unrestricted right to travel. (Manotoc v. 142 SCRA 149) 271 HDO may be issued by the Secretary of Justice against the following under certain instances: 1. Chief Justice of the Supreme Court for the Judiciary. Also.271 270 Thus. moreover. Those accused who have jumped bail or are fugitives from justice are included in this category. the trial court may validly refuse to grant the accused permission to travel abroad. The court ruled in the negative. or when the interest of national security. 3. Against any person. The condition imposed upon petitioner to make himself available at all times whenever the court is required his presence is a valid restrictions on his right to travel. public safety or public health” and “as may be provided by law.b. in criminal cases falling within the jurisdiction of lower courts (courts below the Regional Trial Court). The constitution itself sets down the measure of allowable impairment: necessity “in the interest of national security.
any citizen has “standing” to assert the right to information 275 This jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military. Other Confidential information.273 10.1997 & other related laws) and Banking Transactions (pursuant to the Secrecy of Bank Deposits Act (R. Criminal matters277 iv. 8293. Likewise. 276 pursuant to the Intellectual Property Code (R. Universal Declaration of Human Rights 273 Art. detention and prosecution. 13(2). diplomatic and other national security matters. 1405. including his own and to return to his country. No. as amended)]. 272 Art. information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest. Limitations i.approved on June 6. either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen The right to information is a “public right”. 278 The Ethical Standards Act (R.A. which embraces a broad spectrum of subjects which the public may want to know. Right to Information274 a.278 the Family Court.20. Trade or Industrial Secrets and banking transactions276 iii.c. The travel of these children may be restrained by a proper issuance of Hold Departure Order. Covenant on Civil and Political Rights 274 Information must be a matter of public concern. 277 such as those relating to the apprehension.A.1989) further prohibits public officials and employees from using or divulging “confidential or classified information officially known to them by 69 .A. 12(4).272 No one shall be arbitrarily deprived of the right to enter his own country. the prosecution and the detention of criminals which courts may not inquire into prior to such arrest. enacted on Feb. Return to One’s County Everyone has the right to leave any country. 6713. Hence. No. National Security matters and intelligence information275 ii.
the right only affords access to records. Thus. it certainly may be regulated. Thus. However. Access to official records.b. G. it is important to keep in mind that the two sentences of Sec. shall be afforded the citizen. regulatory discretion must include both authority to determine the manner of access to them. too.299 S 744) 279 Art.R. The right of access to official record is given as an implementation of the right to information. 133250. Thus. PEA and Amari. however. July 9.). subject to such limitations as may be provided by law. III. 280 Chavez vs. it may be too late for the public to expose its defects. (Sec. PCGG.279 d. In determining the allowable scope of official limitation on access to official records. the right to information on matters of public concern is both the purpose and the limit of the right of access to public documents. 7 The constitutional right. Other acknowledged limitations to information access include diplomatic correspondence. 2002 70 .280 (2) Diplomatic Negotiations reason of their office and not made available to the public”. transactions. the people can never exercise the right if no contract is consummated. does not mean that every day is an open house in public offices. The question then boils down to a determination of the scope of official regulatory discretion. c. and to documents and papers pertaining to official acts. while access to official records may not be prohibited. The regulation can come either from statutory law and from what the Supreme Court has called the “inherent power [of an officer] to control his office and the records under his custody and to…. or if one is consummated. closed door Cabinet meetings and Executive sessions of either house of Congress. The right given by the Constitution is “subject to such limitations as may be provided by law”. or decisions. documents and papers. Right to Information Relative to (1) Government Contract Negotiations The right to information contemplates inclusion of negotiations leading to the consummation of the transaction. as well as the internal deliberations of the Supreme Court. 7[c]. (Chavez v. that is. the right to information on matters of public concern. Sec. Publication of Laws and Regulations Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. The exercise is also subject to reasonable regulations to protect the integrity of public records and to minimize disruption of government operations. which means the opportunity to inspect and copy them at his expense. Otherwise.7 guarantee only one general right. examine or copy the record may exercise their rights. ibid. as well as to government research data used as basis for policy development. No. Access to Court Records The right of the people to information on matters of public concern shall be recognized. Exercise [same discretion] as to the manner in which persons desiring to inspect.
July 16. It shall not be impaired without due process of law. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information. Right of Association The right to form associations is a general right of liberty. III of the Constitution. Expansive Concept of "Public Use" Any use directly available to the general public as a matter of right and not merely of forbearance or accommodation. it is described as the highest and most exact idea of property remaining in the government that may be acquired for some public purpose through a method in the nature of a compulsory sale to the state. 1998) 71 . G. It bears emphasis. it is an aspect of freedom of contract. et al.282 12. recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. An ejectment suit should not ordinarily prevail over the State’s power of eminent d omain. G.R. Ermita holds. (Republic v. 170516. December 2. For as Senate v. Tagle. merely imposes a limit on the government’s exercise of this power and provides a measure of protection to the individual’s right to property. 2008 Also guarantees the right not to join an association. No. Eminent Domain283 a. Thomas Aquino.. Concept This is also known as the power of expropriation. b. 283 It is well settled that eminent domain is an inherent power of the State that need not be granted even by the fundamental law. that such privilege is only presumptive. 129079. No. however. vs. It does not matter whether the direct use of the expropriated property by the public be for free or for a fee.Recognized as privileged in this jurisdiction.281 11.R. strong enough to overcome its traditionally privileged status. Art. in mandating that private property shall not be taken without just compensation. 9. et al. Any member of the general 281 282 Akbayan. Se.
G. 139495. upon payment of just compensation.286 The State may. Dulay. No condition on the right to repurchase was imposed.public. it is the fair market value of the property. the terms of the judgment in the expropriation case were very clear and unequivocal. the property shall revert to the former owner. Miscellaneous Application Private property shall not be taken for public use without just compensation. but in no case shall the consequential benefits exceed the consequential damages. to which must be added the consequential damages.R. granting title to the lot in fee simple to the Republic. can demand the right to use the converted property for his direct and personal convenience. establish and operate vital industries and. and PD 76.e. i.285 e. as such.. 2000 286 Art. (EPZA v. 9 72 . in the interest of national welfare or defense. if any. In this case. d. transfer to public ownership utilities and other private enterprises to be operated by the Government. III.287 284 The ascertainment of what constitutes just compensation for property taken in eminent domain cases is a judicial prerogative. Sec. No. redound to their indirect advantage or benefit. if any. while not directly available to the public.284 (2) Effect of Delay Without prompt payment. if land is expropriated for a particular purpose with the condition that when that purpose is ended or abandoned. which fixes payment on the basis of the assessment by the assessor or the declared valuation by the owner. is unconstitutional. then the former owner can re-acquire the property. 148 SCRA 305) 285 Mactan-Cebu International Airport Authority vs. c. Abandonment of Intended Use and Right of Repurchase The property owner’s right to repurchase the property depends upon the character of the title acquired by the expropriator. This cover uses which. Just Compensation (1) Determination The full and fair equivalent of the property taken. November 27. compensation cannot be considered just. for the property owner is made to suffer the consequences of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss. Court of Appeals . minus the consequential benefits.
the State shall respect the right of small landowners. Secs. Sec.289 13. certificate. to own directly or collectively the lands they till or. who are landless. 4 & 9 289 Sec. XII. The charter itself constitutes a contract with the state. 11 73 . The State shall further provide incentives for voluntary land.The State shall. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital. and subject to the payment of just compensation. In determining retention limits. certificate. undertake. developmental. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment. franchises are subject to alterations through a reasonable 287 288 Art. including onerous franchises and privileges granted by the state. taking into account ecological. subject to such priorities and retention limits as the Congress may prescribe. Contemporary Application of the Contract Clause The contract clause protects public contracts. by law.288 The State shall. 18 Art. Contract Clause No franchise. In the implementation of such program the State shall respect the right of small property owners. to receive a just share of the fruits thereof. in the case of other farm workers. The State shall encourage equity participation in public utilities by the general public. nor shall such franchise. or equity considerations. by law. and for the common good. or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines. 9 290 Sec. To this end. With or without a reservation clause. a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. at least sixty per centum of whose capital is owned by such citizens.sharing. Section 11 of the Constitution. The reservation was made in Article XII. XIII. undertake an agrarian reform program founded on the right of farmers and regular farm workers. in cooperation with the private sector. and all the executive and managing officers of such corporation or association must be citizens of the Philippines. alteration.290 a. or repeal by the Congress when the common good so requires. the State shall encourage and undertake the just distribution of all agricultural lands. It shall also promote adequate employment opportunities to such citizens. or authorization be exclusive in character or for a longer period than fifty years.
exercise of the police power. He is not only duty-bound to tell the person the rights to which the latter is entitled. moreover. may not be used against him. 2(a) provides that “…. (People vs. he cannot be a special counsel. (People vs. Bandula 232 SCRA 566) The right to counsel does not mean the accused must personally hire his own counsel. Sec. Where the court ruled that the right to counsel is intended to preclude the slightest coercion or would lead the accused to admit false. public or private prosecutor. he must also explain their effects in practical terms. Rights of Suspects292 i. 294 RA 7438. 74 . A person who is not an accused may assume the stance of silence only when asked an incriminating question.” In other words. only an accused has the absolute right to remain silent. They are also subject to alterations by the power to tax which like police power. the right of a person under investigation to be informed implies a correlative obligation on the part of the police investigator to explain. 12 293 Under the right against self-incrimination in Sec. counsel of the police. and contemplates an effective communication that results in understanding what is conveyed. however. should never prevent an accused from freely and voluntarily telling the truth. Sec. preferably of his own choice iii.295 a. Any person under arrested. Right to be provided with the services of counsel if he cannot afford the services of one294 iv. III. Under Sec. Right to be informed of such rights. detained or under custodial investigation shall be at all times be assisted by counsel. Art. Right to Remain Silent293 ii. Availability 291 292 Ibid. cannot be contracted away. 295 The right guaranteed here is more than what is shown in television shows where the police routinely reads out the rights from a note card. The constitutional requirement is satisfied when a counsel is engaged by acting on behalf of the person under investigation or appointed by the court upon petition by said persons or by someone on his behalf. The lawyer. Enanoria) Where the court ruled that the Constitution requires that counsel be independent.291 15. Obviously. 17. however. 14. Short of this. a person under investigation has the right to refuse to answer any question. as it cannot then truly be said that the person has been informed of his rights. His silence. there is denial of the right. Right to a competent and independent counsel. or a municipal attorney whose interest is admittedly adverse to the accused. it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of the Constitution. it must be presumed to contemplate the transmission of a meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. Legal Assistance and Free Access to Courts Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. As a rule. 12. therefore. As People V Rojas 147 S 169 put it: “When the Constitution requires a person under investigation to be informed of his right to remain silent and to counsel.
Even if the person consents to answer questions without the assistance of counsel. R. 5.Available only “under custodial investigation” for the commission of an offense. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect. 7438. There can only be a valid waiver of the right if such right is in writing and in the 75 . 236 S 565: “Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. c.” Custodial investigation begins the moment an incriminating question is asked. 297 Art. he must be told that anything he says can and will be used against him in court. without prejudice to the liability of the “inviting” officer for any violation of law. 6. III. Waiver These rights cannot be waived except in writing and in the presence of his counsel. and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate. 2. the interrogation must cease until an attorney is present. 3. that the rights begin to be available only when the person is already in custody. no evidence obtained as a result of the interrogation can be used against him. The person in custody must be informed at the outset in clear and unequivocal terms that he has a right to remain silent. Requisites 1. As Justice Regalado emphasized in People V Marra. He must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during the interrogation.”296 b. But note RA 7438 which defines “moment of invitation” as start of custodial investigation. a lawyer will be appointed to represent him. Section 12 (1).A. He should be warned that not only has he the right to consult with a lawyer but also that if he is indigent. the suspect is taken into custody. last sentence The right to counsel during custodial investigation is not waived by reason of failure to make a timely objection before plea. “Custodial investigation” shall include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed. After being so informed. 4.297 296 Jurisprudence under the 1987 Constitution has consistently held the stricter view. the moment he asks for a lawyer at any point in the investigation. If the foregoing protections and warnings are not demonstrated during the trial to have been observed by the prosecution.
The court. c. 7438. reclusion perpetua.R. 76 . on application. evaded sentence. No. Revised Rules of Criminal Procedure).300 Upon conviction by the RTC of an offense not punishable by death. 113940. Sec. under certain circumstances. d. Sec. or has violated the conditions of his bail without valid justification.301 presence of counsel as mandated by Art.R. quasi-recidivist. Even if the confession of the accused is gospel truth. 112262. may allow the accused to continue on provisional liberty after the same bail bond during the period to appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding 6 years but not more than 20 years. furnished by him or a bondsman.. Rights of the Accused298 a. to guarantee his appearance before any court as required under conditions specified under the rules of court. Accused proceeded against under orderly processes of law. This refers to custodial investigation only. or habitual delinquent. Section 12 of the 1987 Constitution and the pertinent provisions of R. the court. et al. 298 Ibid. and b.16. upon showing by the prosecution. III. Rule 114. Criminal Due Process a. (People vs. 19960).A. Camat. 300 Rule 114. in its discretion. et al. reclusion perpetua or life imprisonment. it is inadmissible in evidence regardless of the absence of coercion. (see Sec. RoC 301 (a) that the accused is a recidivist. may admit the accused to bail. February 15. b. No. or his bail previously granted shall be cancelled. 14 299 The security given for the release of a person in custody of law. with sufficient sureties. 2000). Accused to be heard in court of competent jurisdiction. if it was made without the assistance of counsel. b. (b) that the accused is found to have previously escaped from legal confinement. or even if it was voluntary given ( People vs. with notice to the accused. or be released on recognizance as prescribed by law or this rule: a. Accused given notice and opportunity to be heard. or life imprisonment. Before conviction of the RTC of an offense not punishable by death. April 2. 1. Before or after conviction by the MTC. the accused shall be denied bail. G. Buluran. G. Judgment rendered was within the authority of constitutional law. Bail299 All persons in custody shall be admitted to bail as a matter of right. or has committed the crime aggravated by the circumstance of reiteracion.. 4.
Assistance of Counsel307 (c) that the accused committed the offense while on probation. (d) that the circumstances of the accused or his case indicate the probability of flight if released on bail. (Rule 114. Sec. Austria. The right to compulsory process to compel the attendance of witnesses in his behalf. the accused may commit another crime. Art.302 c. The right to present evidence305 and to be present at the trial.306 2. (People v. Right to be Heard Three (3) specific rights: 1. 306 An important facet of the right to be heard is the right to be present at the trial. Presumption of Innocence In all criminal prosecutions. parole. 77 . the accused shall be presumed innocent until the contrary is proved303 xxx Every circumstance favoring the innocence of the accused must be taken into account. charged with a capital offense. “In all criminal prosecutions the accused has an absolute right to be personally present during the entire proceedings from arraignment to sentence if he so desires. the right of the accused to be present may be waived totally except when his presence is needed for purposes of identification. 3. or under conditional pardon. Sec. or (e) that there is undue risk that during the pendency of the appeal. The substantial rights of the accused should not be impaired because of his counsel’s anxiousness to have him promptly acquitted. and its error for the court to consider in one case the evidence adduced against him in another. If accused of two offenses. 7 303 Se. he is entitle to trial of each case. 5) 302 Ibid. e. regardless of the stage of the criminal prosecution. evidence of guilt is strong. because of the new provision allowing trial in absentia. 14 (2). The right to be assisted by counsel.” It has in fact been held that. and b.304 d. 195 SCRA 700) 305 The right to present evidence includes the right to testify in one’s favor and the right to be given time to call witnesses. or an offense punishable by reclusion perpetua or life imprisonment.No person. III 304 The proof against him must survive the test of reason. the strongest suspicion must not be permitted to sway judgment. shall be admitted to bail if: a.
The accused is amply accorded legal assistance extended by a counsel who commits himself to the cause of the defense and acts accordingly. “to confront and crossexamine the witness against him at the trial”. to afford the accused an opportunity to test the testimony of the witness by cross-examination. 120420. People v.308 f.R. Sec. Impartial and Public Trial Speedy Free from vexatious. to allow the judge to observe the deportment of the witness 78 . The real nature of the crime charged is determined from the recital of f actsin the information. 1376. not designation of the offense. No. 1(f) of the New Rules of Court expresses it. Right of Confrontation310 Closely connected with and equally essential as the right to be heard is the right “to meet the witness face to face” or as Rule 115. if one should be had. “to confront and cross-examine the witness against him at the trial”.R. 1904 310 Witnesses not submitted for cross-examination not admissible as evidence. 307 308 Right to counsel during the trial is not subject to waiver ( Flores v. Bermas. 1(f) of the New Rules of Court expresses it. April 21. To avail himself of his conviction or acquittal for protection against further prosecution for the same cause 3. 21. To inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction. h. Right to be Informed 1. Jan. To furnish the accused with such a description of the charge against him as will enable him to make his defense 2. The right has a twofold purpose: 1. 90 SCRA 428). G. 1999 309 US v. 2. Right to Speedy. Sec. and not simply a perfunctory representation. Karelsen G. g. an efficient and truly decisive legal assistance. Closely connected with and equally essential as the right to be heard is the right “to meet the witness face to face” or as Rule 115. Public To prevent possible abuses which may be committed against the accused. capricious and oppressive delays. It is neither determined based on the caption or preamble the reof norfrom the specification of the provision of the law allegedly violated. No.309 Description. is controlling. Ruiz. Impartial Accused entitled to cold neutrality of an impartial judge. Right to cross-examination may be waived.
251 SCRA 709). for an accused to be excused from attending trial. 312 The presence of the accused at arraignment is an absolute requisite for any trial to proceed. or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. Accused has been arraigned312 2. Restrictive Conditions for allowing Waiver: The right may be waived “Provided that after arraignment he may be compelled to appear for the purpose of identification of witnesses of the prosecution. 2. with the day and cause of 311 Trial in Absentia can also take place when the accused voluntarily waives his right to be present. He must unqualifiedly admit that every time a witness mentions a name by which he is known. the witness is to be understood as referring to him. if allowed to be absent in all the stages of the proceeding without giving the People’s witnesses the opportunity to identify him in court. commanding him to produce the body of the prisoner at designated time and place. it is not enough that he vaguely agrees to be identified by witnesses in his absence. j. Reason for requiring the presence of the accused. Notice of the trial was duly served to him and properly returned 3. Sumulong-Torres. Writ of Habeas Corpus313 A writ issued by court directed to person detaining another. to allow the judge to observe the deportment of the witness i. The accused. Compulsory Process Equally important as the right to counsel is the right to compulsory process for the attendance of the witnesses. he may in his defense say that he was never identified as the person charged in the information and therefore. His failure to appear is unjustified 17. however. the reason being that it is at arraignment that the accused is informed of the nature and cause of the accusation against him and it is then that the trial court acquires jurisdiction over the person 313 Habeas corpus lies only where the restraint of a person’s liberty has been judicially adjudged to be illegal or unlawful (In Re: Petition for Habeas Corpus of Wilfredo S. 79 .” Thus. may not invoke this right on appeal if he made no effort during the trial to avail himself of it. Trials in Absentia311 Three (3) conditions must concur: 1.The right has a twofold purpose: 1. is. despite his waiver. is entitled to acquittal. to afford the accused an opportunity to test the testimony of the witness by cross-examination.
316 a.his capture and detention. and kalikasan Writ of Amparo A remedy available to any person whose right to life.315 habeas data. home and correspondence of the aggrieved party. Reviewer in Political Law. to do. people’s organization.J. p. involving environmental damage of such magnitude as to prejudice the life. The writ shall cover extralegal killings and enforced disappearance or threats thereof. 17 80 . Self-Incrimination Clause No person shall be compelled to be a witness against himself. Writ of Habeas Data A remedy available to any person whose right to privacy in life. and to receive whatever court or judge awarding writ shall consider in his behalf. liberty or security is violated or threatened by an unlawful act or omission of a public official or employee. liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee. to submit to. or threatened with violation by an unlawful act or omission of a public official or employee. collecting or storing of data or information regarding the person. on behalf of persons whose constitutional right to a balanced and healthful ecology is violated. Scope and Coverage Available not only in criminal proceedings. or of a private individual or entity engaged in the gathering. family. or of a private individual or entity. non-governmental organization. entity authorized by law. The Writ of Amparo: A Remedy to Enforce Fundamental Rights. 18. May be 314 315 Nachura. including civil actions and administrative or legislative investigations. 15 (1993). health or property of inhabitants in two or more cities or provinces. 316 Sec. or any public interest group accredited by or registered with any government agency.314 18. or private individual or entity. Writ of Amparo. 135 It is an effective and inexpensive instrument for the protection of constitutional rights (Azcuna. but also in all other government proceedings. 37 Ateneo L. Writ of Kalikasan It is available to a natural or juridical person.
Involuntary Servitude and Political Prisoners Involuntary Servitude General Rule: No involuntary Servitude shall exist. c.e. Except: a. Sec. i. Use and Fruit Immunity Prohibits the use of a witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. III. 318 Art. Application Applies only to testimonial compulsion317 and production of documents. Immunity Statutes Transactional Immunity318 The testimony of any person or whose possession of documents or other evidence necessary or convenient to determine the truth in any investigation conducted is immune from criminal prosecution for an offense to which such compelled testimony relates. Hence. as punishment for a crime whereof one has been duly convicted320 317 The Kernel of the right is not against all compulsion but testimonial compulsion only. XIII. papers and chattels in court except when books of account are to be examined in exercise of power of taxation and police power. extracting from the lips of the accused an admission of his guilt. photographing and paraffin testing. 138 SCRA 274 320 Art. a person may be compelled to submit to fingerprinting. Pamaran. 18(2) 81 . 18 (8) 319 Galman v.319 19. Sec.claimed not only by accused but by a witness to whom an incriminating question is addressed. (1) Foreign Laws b.
Sec.328 22. 18 327 id. 211. G. Excessive Fines and Cruel and Inhuman Punishments327 Prohibited punishment .b. par. conviction or acquittal under either shall constitute a bar to another prosecution for the same act. March 29. Sec. Sec. penalty must be flagrant and plainly oppressive. FC 326 Art. Sec 4 Robertson v. posse comitatus323 e. patria potestas325 Political Prisoners No person shall be detained by reason of his political beliefs or aspirations. 1948 325 Art. Community Tax ) A Tax is not a debt since it is an obligation arising from law hence its non-payment maybe validly punished with imprisonment. 20 Coverage: 1. Poll Tax – a specific sum levied upon any person belonging to a certain class without regard to property or occupation (e. Baldwin. Pompeya. 245 324 Kaisahan ng Mangagawa sa Kahoy v. L-1573. No person shall be twice put in jeopardy of punishment for the same offense. 21.g. 19 328 id. To violate constitutional guarantee. service in defense of the state321 c. 2. Double Jeopardy329 321 322 Art.R. Non-Imprisonment for Debts No person shall be imprisoned for debt or non-payment of poll tax. 31 Phil. 2. II. 329 Two types: 1. naval enlistment322 d. 165 US 275 323 US v. Debt – any civil obligation arising from a contract. No.(2).326 20. If an act is punishable by a law and an ordinance. Crimes covered: 82 . Gotamco Sawmills. return to work order in industries affected with public interest324 and f.mere severity does not constitute cruel or unusual punishment. III. disproportionate to nature of offense as to shock senses of community.
c. valid complaint or information. New evidence has been discovered which materially affects the decision rendered. conviction or acquittal under either shall bar another prosecution for the same act. The decision is not supported by the will issue only to correct errors of evidence on record. not errors of procedure or irregularities have been committed which mistakes in the findings or conclusions of are prejudicial to the interest of the the lower court.333 Appeal from the order of dismissal by the 1. Certiorari 2. 330 With the presence of the requisites the accused cannot be prosecuted anew for an identical offense or for any attempt to commit the same or frustration thereof or for any offense which necessarily included in the offense charged in the original complaint or information 331 People v. The prosecution can appeal if the accused waived or is estopped from invoking his right. June 21. 23 SCRA 1249 83 . Motions for Reconsideration and Appeals Motions for Reconsideration 1. 1999 333 PP vs. filed before competent court. and d. when an act is punished by a law and an ordinance. 58 Phil 851 332 PP vs. defendant was previously acquitted or convicted or the case dismissed or otherwise terminated without his express consent331 b. Ylagan. and 2. same offense. Obsania. Appeals The rule on double jeopardy prohibits the state from appealing or filing a petition for review of a judgment of acquittal that was based on the merits of the case.332 respondent. CA and Maquiling. or errors of law or jurisdiction. or attempt to commit or frustration thereof or for any offense which necessarily includes or is necessarily included in the offense charged in original complaint or information. Requisites330 a. to which defendant has pleaded.a. b.
237 SCRA 575 Characteristics: 1. Dismissal with Consent of Accused Does not put accused in first jeopardy. when the proceedings have been unreasonably prolonged as to violate the right of the accused to a speedy trial. except: a. he waives his right to plead double jeopardy. retroactive. legislative declaration of guilt. law making an act criminal which was not Legislative act that inflicts punishment before its passage. 2. 334 335 Martinez v. c.334 If the accused appeals his conviction. prejudice the accused. refers to criminal matters. Ex Post Facto Laws and Bills of Attainder Ex post facto law335 Bills of Attainder a. c. without trial. or b. b. law inflicting greater or more severe penalty. The whole case will be open to review by the appellate court. law aggravating penalty for crime committed before passage. 84 . CA. Such court may even increase the penalties imposed on the accused by the trial court.lower court is not foreclosed by the rule on double jeopardy where the order of dismissal was issued before arraignment. when ground for dismissal is insufficiency of evidence. and 3. 23.
336 337 Those who are citizens under the Treaty of Paris. Who are Filipino citizens a. 336 Those who are naturalized in accordance with law. or a proclamation of amnesty. No. of deprivation of right for something which when done was lawful. L-9602) Act 2927 85 . law depriving accused of some lawful protection to which he had been entitled. G.337 Those who are citizens under the 1935 Constitution. c. Those declared citizens by judicial declaration applying the jus soli principle. Republic (25 April 1957. in order to convict accused. b. law altering legal rules of evidence and receive less or different testimony than law required at time of commission. H. g. law assuming to regulate civil rights and remedies only.R.d. e. before Tio Tiam v. d. such a protection of a former conviction or acquittal. Citizenship 1. in effect imposes a penalty. f.
e. jus sanguinis. if: b. Defending or teaching necessity or 1. The widow or children of the applicant who died before his application was granted. j. 6809 86 . 339 as amended by R. c. jus soli. Naturalization and Denaturalization Naturalization338 Qualifications Disqualifications a. public or private school not established for exclusive instruction to particular nationality e. Those who are citizens under the 1973 Constitution. may be reduced to 5 years. personal assault or assassination for the success or 2. b. d. established new industry or introduced predominance of their ideas. 338 Declaration of Intention – must be filed with the Office of the Solicitor General one (1) year before filing of application for naturalization. honorably held office in the Philippines. and ii. Modes of acquiring citizenship a. 3. 2. resided in the Philippines for not less than opposing all organized governments.A. Convicted of crime involving moral or race. c. Those born in the Philippines and received primary and secondary education in a Philippine school. married to a Filipino woman. engaged as teacher in Philippine incurable contagious disease.339 persons who uphold and teach doctrines b. By birth i. Exceptions: a. c. Polygamists or believers in polygamy.propriety of violence. not less than 18 years of age on date of of affiliated with any association or group of hearing of petition. Suffering from mental alienation or 4. b. By marriage 3. 10 years. Opposed to organized government or a. a useful invention. or in any of branches of education turpitude. Those who have resided in the Philippines for thirty (30) years. By naturalization.
341 340 as amended by Sec. government and civics are taught as part of curriculum. Citizens or subjects of foreign country whose laws do not grant Filipinos right to become naturalized citizens or subjects thereof. an h. 6. c. during residence in the Philippines. Enrolled minor children in any public or private school recognized by government where Philippine history. during the period of such war. conducted himself in irreproachable conduct during his stay in the Philippines. Citizens or subjects of nations with whom the Philippines is at war. traditions and ideals of Filipinos.340 and f. Speak and write English or Filipino and any principal Philippine dialects. have not mingled socially with Filipinos. believes in the Constitution. e. Effects of Naturalization: On the wife Vests citizenship on wife who might herself be lawfully naturalized. She need not prove her qualifications but only that she is not disqualified. Who. and 5.or industry for a period of not less than 2 years. g. XIV 87 . d. Own real estate in the Philippines not less than P5. character: a. during the entire period of residence prior to hearing of petition. profession or lawful occupation that can support himself and his family. c. good moral character. b.000 in value. or not evinced sincere desire to learn and embrace customs. 6. born in the Philippines. or have some lucrative trade. Art.
On the minor children 1. Effects 1. Denaturalization Grounds 1. Comm. the wife and children shall retain citizenship. 2. Naturalization obtained through invalid declaration of intention. If. 3. provided registered as such before any Philippine consulate within 1 year after attaining majority age and takes oath of allegiance. denaturalization shall divest wife and children of their derivative 2. he returns to his native naturalization. If the ground is personal. 41 SCRA 292 88 . unless begins to reside permanently in the Philippines. within 5 years. Born abroad If born before the naturalization of the Father: (a) residing in RP at the time of naturalization – automatically becomes citizen. 341 Moy Ya Lim Yao v. If born outside the Philippines after parents’ naturalization considered Filipino. (b) not residing in RP at the time of naturalization – considered citizen only during minority. If ground affects intrinsic validity of proceedings. 2. of Immigration. 3. and country or to some foreign country and establishes residence therein. Naturalization certificate obtained fraudulently or illegally. Born in the Philippines– automatically becomes a citizen.
and 5. of two or more states. Minor children failed to graduate through the fault of the parents either by neglecting support or by transferring them to another school. 89 . as a result of Refers to the situation where a person concurrent application of the different laws simultaneously owes. Allowing himself to be used as dummy. by some positive act. May 26.344 d. Naturalization in a foreign country. 135083. Subscribing to an oath of allegiance to c. Dual citizenship and dual allegiance Dual citizenship Dual allegiance Arises when. 4. By repatriation347 c. G. By direct act of Congress constitution or foreign laws upon attaining of 21 years of age.4.A. Express renunciation of citizenship343 Reacquisition of Philippine Citizenship: a. Rendering service to or accepting commission in the armed forces of a foreign country. b. By naturalization346 b. 342 343 C. Loss and re-acquisition of Philippine citizenship Loss of Philippine Citizenship:342 a. 63 Expatriation The mere application or possession of an alien certificate of registration does not amount to renunciation (Mercado vs. 1999) Subscribing to an oath of allegiance to constitution or laws of foreign upon attaining of 21 years of age. a person is loyalty to two or more states. Citizens may not divest citizenship when Philippines is at war 344 Citizens may not divest citizenship when Philippines is at war.R. Manzano. Involuntary Result of an individual’s volition 5. simultaneously considered a national by said states. No.
VI 90 . 345 General Rule: Res judicata does not set in citizenship cases.350 citizenship. Exception: 1.A. Vice President. 2. f. id. IV 349 Sec. Those born before January 17. Allows the person to recover or return to his original status before he lost his Philippine citizenship. Members of Congress. Person convicted of crimes involving moral turpitude: or d. b. Filipino women who have lost their Philippine citizenship by marriage to aliens and.2. b. 348 Sec. Citizens of the Philippines from birth a. R. Person opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government. Person suffering from mental alienation or incurable contagious diseases.3. 1973 of Filipino mothers.e.345 6. with the active participation of the Solicitor General or his representative. or association for the predominance of their ideas. natural-born Filipinos who have lost their Philippine citizenship on account or political or economic necessity. Art. personal assault. and 3. President. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen. Natural-born citizens and public office Natural Born Citizens:348 The following must be must be naturalborn citizens: a. Cancellation of certificate of naturalization.351 b. Having been declared by final judgment a deserter of Philippines Armed Forces in times of war.3 & 6. finding of his citizenship is affirmed by the Supreme Court. 8171 is an act providing for the repatriation of: a. VII 350 Sec. The applicant should not be a: a. who elect Philippine d. person’s citizenship is resolved by court or an administrative body as a material issue in the controversy. c. Justices of the Supreme Court and lower 346 347 supra Repatriation shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration. c. Person defending or teaching the necessity or propriety of violence. 2.349 without having to perform any act to acquire or perfect their Philippine b. after a full-blown hearing. 351 Sec. Art. Art.
by which for a given period. public duties as an employee. RPC 91 .352 majority e. by direct provision of law.XIII 357 Art. Constitutional Commissions.354 g.356 of the I. IX-C. either fixed by law or enduring at the pleasure of the creating power. General Principles Public office The right. or shall perform in said Government or in any of its branches. VIII Sec.1(1) of Arts. IX-B. and IX-D 355 Sec.20. Any person who. 203. A person who holds public office. shall take part in the performance of public functions in the Government of the Philippine Islands.8. Art.citizenship upon reaching the age of collegiate courts. Chairman and members Commission of Human Rights. Ombudsman and his deputies.XI 354 Secs.357 c. created and conferred by law. agent or subordinate official. b. popular election or appointment by competent authority. of any rank or class shall be deemed to be a public officer.353 f.17(2).355 h. XII 356 Sec. Public officer a. Law on Public Officers 1. Art. Members of the governing board of the Central Monetary Authority. 7(1). an individual is invested with some sovereign power of government to be exercised by him for the benefit of the public. Includes elective and appointive officials and 352 353 Sec. authority or duty. Art. Art.
No.360 358 359 Sec. without the necessity of just cause or a valid investigation. 2. unclassified or exempt service. In some instances. 111091. Modes of Acquiring Title to Public Office a. Aug. the petitioner had no cause to demand reinstatement thereto. There is no such thing as vested interest or an estate in an office or even an absolute right to hold it. G. compensation.A. R. b. and thus protected by the constitutional guaranty of security of tenure. Modes and Kinds of Appointment Permanent Extended to a person possessing the requisite qualifications.R. from the government. permanent or temporary. even nominal.employees. 3019 (Anti-Graft and Corrupt Practices Act) Preclaro v. By election c. By appointment b. When the temporary appointment was not renewed. receiving. 1995 360 The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position.359 3. Public office is personal to the incumbent thereof or appointee thereto. 2. c. 21. including the eligibility required for the position. (Romualdez v. by contract or by some other modes authorized by law. Temporary Extended to one who may not possess the requisite qualifications or eligibility required by law for the position. and is revocable at will. Public office is a public trust created in the interest and for the benefit of the public. whether in the classified. CSC) 92 . Sandiganbayan.358 Characteristics of public office a.
Ad-interim One made by while Congress is not in session. whenever a vacancy occurs and filling thereof is necessary in the interest of the service and there is no appropriate register of eligible at the time of the appointment. Provisional appointment is one which may be issued.Acting Appointment The appointee may not possess the required qualities or the eligibility required by law for the position. considered temporary appointment. to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position. a new appointment is necessary (Province of Camarines Sur v. Alonto 362 Ambas v. upon prior authorization to the CSC. the same has to be for a valid and just cause. Buenasedo 363 abolished already.362 Provisional appointment One issued upon the authorization by CSC to a person who has not qualified in an appropriate exam but otherwise meets the requirement for appointment to a regular position whenever such vacancy occurs and filling it is necessary in the interest of service and there is no appropriate register of eligible employees at the time of the appointment.363 Regular One made by the President while Congress is in session after the nomination is confirmed by the COA and continues until the end of the term. and is revocable at will without the necessity of just cause and valid investigation. 93 . CA) 361 Marahomsan v. is immediately effective and ceases to be valid if disapproved or by passed by the COA upon the next adjournment of Congress Acquisition of the appropriate civil service eligibility by a temporary appointee will not ipso facto convert the temporary appointment into a permanent one.361 Temporary Appointment for The appointment may be revoked only at the expiration Fixed Period of the period or. before the confirmation by the COA. if revocation is made before such expiration.
the giving of an official bond. and often. taking an official oath or giving an official bond. and in some cases. Qualification This refers to the act which a person.g. Citizenship368 b. or attributes which make an individual eligible for public office. He could become merely a de facto officer. Eligibility and Qualification364 Requirements Eligibility It is the state or quality of being legally fit or qualified to be chosen. physical fitness and other requirements for successful performance. But prolonged failure or refusal to take an oath or office could result in the forfeiture of the office 367 Qualification standard-expresses the minimum requirements for a class in position in terms of education. COMELEC. Age 364 “Loss of any of the qualifications during incumbency will be a ground for termination” ( Frivaldo v.365 b. Residence c. The act of entering into the performance of the functions of a public office. Failure of an officer to perform an act required by law (e. training and expense. subscribing and filing of an official oath. 368 A voluntary change of citizenship or a change thereof by operation of law disqualifies him to continue holding the civil service position to which he qualified and had been appointed. before entering upon the performance of his duties.366 General qualifications:367 a.4. It may refer to: a. is by law required to do such as the taking.g. civil service eligibility. 94 . Loss of any of the qualifications during incumbency will be a ground for termination 366 e. Endowments. 174 SCRA 245) 365 Qualifications (endowments) must be possessed by the individual at the time of appointment or election and continuously for as the official relationship continuous. qualities. oath) coul d affect the officer’s title to the given office.
2 374 Art. the Members of the Cabinet. IX-A. 370 Art.372 d) No Member of a Constitutional Commission shall. 1. Art. during his term for which he was elected. the Ombudsman and his Deputies are appointed to a term of seven (7) years. Disabilities and Inhibitions of Public Officers a) The President. 11 376 Art. 1. 13 372 Art. VI. Sec.370 b) No Senator or Member of the House of Representatives may old any other office or employment in the Government. Art. Vice-President. Sec. 13 371 Art. Sec. Sec. and their deputies or assistants shall not.377 The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional 369 Temporary appointments of non-eligible may be made in the absence of eligible actually and immediately available. 11 95 . or any subdivision. Sec. hold any other office or employment373 the same disqualification applies to the Ombudsman and his Deputies. XI. Art. IX-D. Sec.d. including government-owned or controlled corporations or their subsidiaries.375 f) Members of Constitutional Commissions. Civil Service369 5. Sec. 8 373 Art. without reappointment.376 g) Members of Constitutional Commissions. 1(2). XI.374 e) The Ombudsman and his Deputies shall not be qualified to run for any office in the election immediately succeeding their cessation from office. XI. the Ombudsman and his Deputies must not have been candidates for any elective position in the election immediately preceding their appointment. IX-C. IX-B. Sec. VII.371 c) The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. 8 375 Art. 8 377 Art. IX-B. unless otherwise provided in the Constitution. 1(2). Sec. during his tenure. Sec. XI. hold any other office or employment during their tenure. IX. agency. Sec. IX-D. Educational Attainment e. or instrumentality thereof. Art. Art. Sec.
380 from such discretion must be exercised within the parameters set by law and with c. The Solicitor general’s duty to represent the government. Sec. to serve them with utmost responsibility. To submit a declaration under oath of his mandatory. Undersecretaries. including government-owned or controlled corporations. VII Sec.379 Specific a. Sec.381 goal.. To be accountable to the people. or the Office of the Ombudsman. Powers and Duties of Public Officers Powers Ministerial Discretionary Discharge is imperative and it must be done Public officer may do whichever way he by the public officer wants provided it is in accordance with law and not whimsical Can be compelled by mandamus Cannot be compelled by mandamus except when there is grave abuse of discretion Can be delegated Cannot be delegated unless otherwise provided by law Duties General/ Constitutional a.is b. Sec. or as Secretaries. 17 381 Id. liabilities and net worth upon the discretion in choosing whether or not assumption of office and as often thereafter to prosecute a case or even withdraw there as maybe required by law. chairmen or heads of bureaus or offices.. To owe the state and the Constitution the best interest of the state as the ultimate allegiance at all times. to act with patriotism and justice. 378 379 Art.378 6. integrity. and to lead modest lives. 18 96 . Although he has the assets. 11. its offices and instrumentalities and its officials and agents except in criminal and civil cases for damages arising from felony.Commissions. 13 Art. loyalty and efficiency.1 380 Id.
attachment or order of execution be seized before being paid to him. Drilon) 97 . i. 383 the just and legal claim to exercise the powers and responsibilities of the public officer. Where there is a de jure officer. Paternity Leave f. 385 Under Office of President Memo Circ. 382 When may Public officer claim legal right to his office? a) File a Quo Warranto – both elective and appointive b) File Election Protest – on elective officer by the losing candidate. Right to Vacation and Sick Leave385 e. 1986. Right of Preference in Promotion d. upon establishing his title to the office cannot recover from the public/government the amount so paid to the de facto officer for services performed by him before the adjudication upon the title. provided the claimant was in the service as of January 9. The salary of a public officer cannot be subject to garnishment. If he has less than fifteen (15) years of service. Right of Salary384 c. 7. and it is generally a fixed annual or periodical payment depending on the time and not on the amount of services he may render. 386 Retirement is compulsory for a member who has reached the age of sixty-five (65) years with at least fifteen (15) years of service. and appropriated to the payment of his debts. more so if they are erroneous or irregular. Rights of Public Officers382 a. No. a de facto officer who. Right to Office383 b.b. Agreements affecting compensation are void as contrary to public policy. The government is not estopped from questioning the act of its officials. government officers or employees are not entitled to commutation of all leave credits without limitation and regardless of the period when the credits were earned. in good faith. It is given to higher degree of employment. Right to Retirement Pay386 g. Right to be indemnified against any liability which they may incur in the bona fide discharge of their duties. has possession of the office and has discharged the duties thereof. is entitled to salary. 54 (3/24/88). 384 a personal compensation to be paid to him for services. “to avail of the old -age pension benefit. Right to pension and gratuity h. (Profeta v. Right to reimbursement for expenses incurred in the due performance of his duty. he shall be allowed to continue in the service to complete the fifteen (15) years. Right to Maternity. A de jure officer.
j. A public officer shall be civilly liable if there is a clear showing of bad faith. 38 (1). Right to exercise the powers connected with the office. Liabilities of Public Officers General Rule on Liability: A public officer is not liable for injuries by another as a consequence of official acts done within the scope of his official authority. Sec. except as otherwise provided by law. CA. m. k. Preventive Suspension389 and Back Salaries The proper disciplining authority may preventively suspend any subordinate officer under his authority pending an investigation if the charge against such officer involves dishonesty.388 a. or neglect in the performance of a 387 Art III. vs. 175 SCRA 686) 388 Administrative Code of 1987. Civil servants are now given the right to self-organize but they may not stage strikes (see: SSS Employees Assoc. n. Sec 8 1987Consti. l. Chapter 9. 18 SCRA 223) Need not be preceded by prior notice and hearing since it is not a penalty but only a preliminary step in an administrative investigation (Lastimosa v. Right to longevity pay. 243 SCRA 497) The period of preventive suspension cannot be deducted from whatever penalty may be imposed upon the erring officer (CSC Resolution No. 98 . malice or negligence. Book 1 389 Preventive Suspension . Right to present complaints and grievances.a precautionary measure so that an employee who is formally charged of an offense may be separated from the scene of his alleged misfeasance while the same is being investigated (Bautista v. For civil service officers and employees – 90 days (max. Vasquez.) The Ombudsman may suspend for 6 months. oppression or grave misconduct. Right to Self-Organization387 8. Peralta. 90-1066) Period for Preventive Suspension: For Local elective officials – 60 days (max) for single offense within a single year for several offenses but not exceeding term of office. Right to special protection.
Rural Bank of San Miguel (Bulacan). Illegal Dismissal. A validly existing public office. negligence or omissions of duty of their official subordinates and even for the latter’s misfeasanc es or positive wrongs rests upon obvious considerations of public policy. or for the nonfeasances. Back salaries are also payable to an officer illegally dismissed or otherwise unjustly deprived of his office the right to recover accruing from the date of deprivation. the necessities of the public service and the perplexities and embarrassments of a contrary doctrine.393 The immunity of public officers from liability for the nonfeasances. G. Principio v. 27. but upon exoneration and subsequent reinstatement. 126 Bangalisan v. Wilfredo B. 99 . Law on Public Officers.duty. in the performance of their public functions.391 9. Court of Appeals. No. this doctrine does not apply when ever a public officer acts outside the scope of his public functions. G. Reyes. or omissions of duty of their official subordinates. Note that in order to be entitled to back salaries. The claim for back salaries must be coupled with a claim for reinstatement and subject to the prescriptive period of one (1) year. the employee suspended must be exonerated of the charges against him. No. negligences. 394 This doctrine is applicable only whenever a public officer is in the performa nce of his public functions. 10. 1923 394 Alberto V. Domo‐Ong and Herminio C. Inc.R. Aldanese. Reinstatement and Back Salaries The public officer shall not be entitled to salaries during the period of preventive suspension. either for the misfeasances or positive wrongs.390 b. are not liable to third persons. 2004 395 Elements 1. March 5. he shall be paid full salaries and emoluments accruing during the period of suspension. 393 McCarthy vs. or if there are reasons to believe that the respondent is guilty of the charges which would warrant removal from the service. De Facto Officers395 390 391 Cruz.R. 154499.. p. L‐19715. either criminal or civil. On the other hand. 276 SCRA 619 392 An exemption that a person or entity enjoys from the normal operation of the law such as a legal duty or liability. Feb. Immunity392 of Public Officers It is well settled as a general rule that public officers of the government.
1616. when availed of by the public officer. or defect being unknown to the public. without acceptance by competent authority does not create a vacancy in public office. Tenure is the period of time during which the public officer actually held office. COMELEC 199 SCRA 750) 397 The compulsory retirement age for members of the Judiciary is seventy (70) years of age and for the other government officers and employees. effectively reduced the term. and he cannot be made to reimburse funds disbursed during his term of office because his acts arevalid as those of a de jure officer. ( Astraquillo v.g. The government agency concerned is vested with discretionary authority to allow or disallow extension of such service. Congress cannot. or t hat there was some other defect or irregularity in its exercise. 190 SCRA 280) When the constitution provides that the term of office of local elective official is three years. Any request for extension of service of compulsory retirees to complete the fifteen (15) years service requirement for retirement shall be allowed only to permanent appointees in the career service who are regular members of the Government Service Insurance System (GSIS). his being replaced shall be regarded as termination through expiration of term.A. Expiration of term or tenure396 b. A de facto officer is entitled to emoluments for actual services rendered. Special Retirement Laws. R. resignation is not complete until accepted by proper authority ( Joson v. not removal. Reaching the age limit397 c. 3. Actual physical possession of said office. will result in termination of official relationship through reaching the age limit (or retirement). When a public officer holds office of the pleasure of the appointing authority. or that there was want of power in the electing body. sixty-five (65) years of age. and shall be granted for a period not exceeding one (1) year. (Toledo v. ( Osmena v. Resignation398 2. Nario. Mere tender of resignation. 187 SCRA 453) 100 . 11. e. COMELEC) 398 the formal renunciation or relinquishment of a public officer Resignation must be accepted by competent authority. by a law calling for delayed election. Termination of Official Relation a. want of power. which allows optional retirement after an officer has rendered a minimum number of years of government service. either expressly or impliedly (as in the appointment of a successor).A de facto officer is one who assumed office under the color of a known appointment or election but which appointment or election is void for reasons that the officer was not eligible. Color of title to the office 396 Term is the period of time during which a public officer has the right to hold the public office. wherein such ineligibility. Manglapus.
duties and obligations pertinent to the office are extinguished thereby. COMELEC) 404 Sec. even during the term for which an existing incumbent may have been elected. will not be effective until after the appointment or election of his successor. Prescription of the right to office j. acceptance of resignation is necessary. 399 entails the ouster of an incumbent before the expiration of his term. 12. There is no necessity for any proceeding to declare or complete the vacation of the first office. Death403 l. 11. before the acceptance of his resignation. (JAMIL vs. A public official ceases to hold office upon his death and all his rights. Conviction of a crime405 n. 400 It is the voluntary relinquishment of an office by the holder. Abolition of office402 i. has vacated his office. Removal399 f. 405 Conviction with a accessory penalty of disqualification-rule: When the penalty impose. Failure to assume elective office within six months from proclamation404 m. Acceptance of an incompatible office401 h. because Art. the resignation. Congress has the right to abolish an office. upon conviction. Impeachment k. abandons his office to the detriment of the public service. The Civil Service In the Philippines. 238 of the Revised Penal Code penalizes any public officer who. 101 . Pacana. A decision becomes binding only after it is validly promulgated. (Adaza v...d. conviction by final judgment automatically terminates official relationship. 135 SCRA 431) Exception: Where the public officer is authorized by law to accept the other office. 401 Acceptance of Incompatible Office ipso facto vacates the other.g. Filing of a certificate of candidacy. the Secretary of Justice who is. If the public officer is mandated by law to hold over. unless said failure is for a cause or causes beyond his control”. Recall e. by express provision of the Constitution. Consequently. carries with it the accessory penalty of disqualification. Valid abolition of office does not constitute removal of the incumbent 403 The death of an incumbent of an office necessarily renders the office vacant. Abandonment400 g.P 881 provides: “The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant. e. with the intention of terminating his possession and control thereof. if at the time of the promulgation of a decision or a resolution. his vote is automatically withdrawn or cancelled. a judge or a member of the collegiate court who had earlier signed or registered his vote. a member of the Judicial and Bar Council 402 Except when restrained by the Constitution. even if accepted. Constitutional Offices cannot be abolished by Congress. B.
Also. including government-owned or controlled corporations with original charters. Corporations created by special charters are subject to the Civil service. entrance based on merit and fitness. Elective officials and their personal and confidential staff. to be determined by competitive examinations.a. PAL.406 b. opportunity for advancement to higher career positions. Department heads and officials of Cabinet rank who hold office at the pleasure of the President and their personal and confidential staff. b. primarily confidential or highly technical by competitive examination. security of tenure.g. M. although governed by a separate merit system. O. bureau directors. who are appointed by the President. The moment that a Corporation ceases to be government controlled. or based on highly technical qualifications. instrumentalities. B. J. Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job 102 . G. e. Personnel of government-owned or controlled corporations with original charters. subdivisions. entrance on bases other than those of the usual tests utilized for career service. Closed Career Positions. and c. semi-skilled. Appointments to the Civil Service Shall be made only in accordance to merit and fitness to be determined. scientific or highly technical in nature. if what is involved is a private corporation from which the government acquires shares of stock. Manila Hotel).g. Personnel Actions 406 The test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law is the manner of its creation. E. The positions included in the non-career service are: L. whether skilled. b. IX-B. and their personal and confidential staff. D. Scope The Civil Service embraces all branches. such as those in the Foreign Office. 2(2) A. undersecretaries. it ceases to fall under the Civil Service. Other than those belonging to the Career Executive Service. Career Officers. Positions in the Armed Forces. e. or which is co-terminus with that of the appointing authority or subject to his pleasure. while those incorporated under the Corporation Law are not. and agencies of the government. 407 Art. N. Permanent Laborers. The “Boy Scouts of the Philippines” is a government-owned or controlled corporation. as far as practicable. K. F. where prior qualification in an appropriate examination is required. Non-career Service characterized by: a. Career Service characterized by: a. Career Executive Service. tenure limited to a period specified by law. or unskilled. it does not fall under the Civil Service (e. Chairmen and members of commissions and boards with fixed terms of office.g. Open Career Positions. I. H. as when it is privatized. and except appointments to positions which are policy determining. Sec.407 c. The positions included in the career service are: C. or which is limited to the duration of a particular project for which purpose the employment was made.
Treason. Accountability of Public Officers a. A decision of conviction must be concurred in by at least two thirds of all the members of the Senate. transfers. 4. demotion and separation”. shall submit its report to the House together with the corresponding resolution. 3. Betrayal of public trust. 4. The Committee. promotion. reemployment. reassignment. Chairmen and Members of the Constitutional Commissions. The Senators take an oath or affirmation. all within the exclusive jurisdiction of the CSC. Other high crimes. Placing on calendar the Committee resolution within 10 days from submission. detail. 3. Removal from Office. and trial by the Senate shall forthwith proceed. the same shall constitute the Articles of Impeachment. Included in the order of business within 10 session days. reinstatement. Vice-President.Disciplinary cases involving “personnel action” affecting employees in the CS including “appointment through certification. Grounds for Impeachment: 1. as well as employment status and qualification standards. Initiation of Impeachment Case: The House of Representatives shall have the exclusive power to initiate all cases of impeachment. and 6. 5. Verified Complaint filed by any member of the house or any citizen upon resolution of endorsement by any member thereof 2. after hearing. 5. 2. Justices of the Supreme Court. 4. Process of Impeachment: 1. A vote of at least one third of all the members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee or override its contrary resolution. 2.408 13. President. 2. Disqualification to hold any other office under the Republic of the Philippines. Effect of Conviction: 1. If the verified complaint is filed by at least one third of all its members. Culpable violation of the Constitution. Discussion on the floor of the report. Bribery. and by majority vote of all its members. Graft and Corruption. 103 . 7. Referred to the proper committee within 3 session days of its inclusion. 5. Trial and Decision in Impeachment proceedings: 1. 3.409 408 409 Mantala v. 3. When the President of the Philippines is on trial the Chief Justice of the Supreme court shall preside but shall not vote. Impeachment A national inquest into the conduct of public men. 2. Salvador Impeachable officers: 1. Ombudsman. 6.
Ombudsman The “champion of the citizens” and “protector of the people” Tasked to entertain complaints addressed to him against erring public officers and take all necessary actions thereon. GR No. House of Representatives. trial and punishment according to law. et al. or prosecution. or any subdivision. 2001). Ed. Limitations: 1. Investigate any act or omission of any public official. 105965-70. This is different from the power to recommend suspension. acts as the champion of the people and the preserver of the integrity of public service.R. 2. Party convicted shall be liable and subject to prosecution. The power to investigate also includes the power to impose preventive suspension. November 10. Sandiganbayan. et al. as well as any GOCC with original charter. b. unjust. The latter is a suspension as a penalty. Not more than one impeachment proceeding shall be initiated against the same official within a period of one year. No. An impeachment case is the legal controversy that must be decided by the Senate while an impeachment proceeding is one that is initiated in the House of Representatives. 139396. Office of the Ombudsman. executive or judicial intervention. prevent. fine. office or agency. 2003). August 15. and ensure compliance therewith. (Uy v.410 (1) Functions a. The Supreme Court consistently refrains from interfering with the exercise of its powers. and recommend his removal. improper. Citing. The House of Representatives shall have the exclusive power to initiate all cases of impeachment. 410 The Constitution and R. Direct the officer concerned to take appropriate action against a public official or employee at fault. and respects the initiative and independence inherent in the Ombudsman who. employee. the proceeding is “initiated” or beg ins when a verified complaint is filed and referred to the Committee on Justice for action (Francisco. 226 SCRA 645) 104 . suspension. and correct any abuse or impropriety in the performance of duties. GR No. Buenesada vs. preventive suspension is not a penalty (Bernas. 2002. vs. 6770 (The Ombudsman Act of 1989) has endowed the Office of the Ombudsman with a wide latitude of investigatory and prosecutory power virtually free from legislative. 160261.b. Flavier. March 20. censure. G.A. 3. or inefficient. beholden to no one. not only those within the jurisdiction of the Sandiganbayan but those within the jurisdiction of the regular courts as well. The 1987 Constitution A Reviewer-Primer.. c. when such act or omission appears to be illegal. Direct any public official or employee of the Government. For purposes of applying the-one year bar rule. to perform or expedite any act or duty required by law. (Loquias v. demotion. or to stop. agency or instrumentality thereof. 2000) The Ombudsman is clothed with authority to conduct preliminary investigation and prosecute all criminal cases involving public officers and employees.
d. 14. h. Publicize matters covered by its investigation when circumstances so warrant and with due process. 411 412 Sec. fraud and corruption and to make recommendations for their elimination and observance of high standards of ethics and efficiency.412 (2) Judicial Review in Administrative Proceedings The administrative case may be appealed to the Court of appeals. in any appropriate case. id. Its approved annual appropriations shall be automatically and regularly released. XI Sec.. Request any government agency for assistance and information necessary in the discharge of its responsibilities and examine. g. and report any irregularity to the COA for appropriate action. (3) Judicial Review in Penal Proceedings The criminal case may be appealed to the Supreme Court. red tape. 13. Art. if necessary. mismanagement. Promulgate its rules of procedure and exercise such other powers or perform such function or duties as may be provided by law. f. to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties. The Office of the Ombudsman shall enjoy fiscal autonomy. Determine the causes if inefficiency. and subject to such limitation as may be provided by law. e. 105 .411 i. pertinent records and documents. Direct the officer concerned.
trustees. 2. Exclusive Appellate Jurisdiction over final judgments. shall not be barred by 413 Original Jurisdiction a. or with Salary Grade Level 27 (G27) according to R. habeas corpus. nos. Ill-Gotten Wealth The right of the State to recover properties unlawfully acquired by public officials or employee. and officials and prosecutors in the Office of the Ombudsman and special prosecutor. (iv) Chairmen and members of the Constitutional Commissions without prejudice to the Constitution. R. or managers of GOCC’s state universities or educational institutions or foundations. violations of R. (iii) Members of the Judiciary without prejudice to the Constitution. engineers and other provincial department heads. specifically including: (a) Provincial governors. Exclusive Original Jurisdiction over petitions for the issuance of the writs of mandamus.A. (RA 8249) 106 . city treasurers. 2. 6758. Book II of the Revised Penal Code where one or more of the accused are officials occupying the following positions in the government. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a in relation to their office. certiorari.A. Board members. assessors. that jurisdiction over these petitions shall be not exclusive of the Supreme Court.A. Title VII. injunction and other ancillary writs and processes in aid of its appellate jurisdiction. city councilors. PN captains and all officers of higher rank. Civil and criminal cases filed pursuant to and in connection with E. b. prohibitions. and (v) All other national and local officials with G27 or higher.2. resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction. provincial treasurers. (d) PA/PAF colonels. and 3. c. 1.O. vice-governors.c. (f) City/provincial prosecutors and their assistants. directors. and Chapter II. Sandiganbayan413 The anti-graft court shall continue to function and exercise its jurisdiction as now and hereafter may be provided by law. (b) City mayors. (ii) Members of Congress and officials thereof with G27 and up. 1379. 14 and 14-A issued in 1986. d. acting or interim capacity at the time of the commission of the offense: (i) Officials of the Executive branch with the position of regional director or higher. (c) Officials of the diplomatic service from consuls or higher. vice-mayors. whether in a permanent. engineers and other city department heads. 3019 (AGCPA) as amended. from them or from their nominees or transferees. Sec. (e) Officers of the PNP while occupying the position of provincial director and those holding the rank of senior superintendent or higher. Provided. and (g) Presidents.
2009) 107 .A. 1999 416 Sec. 2002). 9164 (March 19. No. G.R. 19 Nov. Sec. October 25. The Court interpreted this section referring to all local elective officials without exclusions or exceptions. LGC 417 under R. laches or estoppel414 but it applies only to civil actions and not to criminal cases. for maximum of three (3) consecutive terms in same position. 186616. Further. Desierto . GR No. ( COMELEC v. 43. except that of elective barangay officials. No.prescription. Cruz. XI.416 Barangay officials Three (3) years. Term Limits Elected local official Three (3) years starting from noon of June 30 following the election or such date as may be provided by law.417 414 415 Art.43 (b) provides that "no local elective official shall serve for more than three (3) consecutive terms in the same position.130140.415 14. Sec. 15 Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.
J. Manner of creation 1. Administrative Law 1. b. grant or special privilege. by constitutional provision. and 3. Bureau of Lands 108 . where the government is offering some gratuity. General Principles Branch of public law that fixes the organization of the government and determines competence of authorities who execute the law and indicates to the individual remedies for the violations of his rights. by authority of law c. 2. Definition A body. 2. Kinds Bodies set up to function in situations 1. other than the courts and the legislature.418 418 e. by legislative enactment. Administrative Agencies a. endowed with quasi-legislative and quasi-judicial powers for the purpose of enabling it to carry out laws entrusted to it for enforcement or execution.g.
wherein the government is seeking to regulate business affected with public interest. wherein the government is seeking under the police power to regulate business and individuals.2. wherein the government is performing some business service for the public. to make the government a private entity. Powers of Administrative Agencies a. BIR Circulars Only an instruction from a higher officer to a lower officer within the same office.426 b.424 3. MWSS 421 e. Wherein the government is seeking to adjust individual controversies because of a strong social policy involved. Quasi-Legislative425 Power In exercise of delegated legislative power.g. (1) Kinds of Administrative Rules and Regulations Legislative regulation a. 109 . Supplementary or detailed legislation.g. LTFRB 422 e.g. It does not have to be published to be effective.419 3. GSIS 425 Rule Making 426 e. ECC 424 e. Rules and Regulations Implementing the Labor Code 427 e.g.422 6.423 7. It has no effect of law because no clear legal right which can be invoked by a third person emanates from it. Contingent regulation Interpretative legislation or internal rules427 419 420 e. involving no discretion as to what law shall be.g.g.g. BIR e.g. but merely authority to fix details in execution or enforcement of a policy set out in law itself. wherein the government is seeking to carry on certain of the actual business of government.420 4. SEC 423 e.421 5.
Law should define or fix penalty therefor. (Ocampo v. (UP Board of Regents v. and not necessarily that an actual hearing was conducted. an administrative body need not comply with the requirements of notice and hearing. but in the performance of its executive or legislative functions.(2) Requisites for Validity a. provided they do not increase diminish or modify substantive rights. CA. b. (Busuego v. 283 SCRA 31) Due process in administrative context does not require trial type-proceedings similar to those in the courts of justice. 319 SCRA 262) The requirement of hearing is complied with as long as there is opportunity to be heard. Administrative body granted authority to promulgate its own rules of procedure. except when it involves revocation of a license. 5 (5) 430 Notice and hearing as the fundamental requirements of due process. 313 SCRA 404 ) Administrative due process cannot be fully equated to due process in its strict judicial sense. ( Melendres v. Quasi-Judicial428 Power Proceedings partake of nature of judicial proceedings.it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present evidence on which a fair decision can be based.429 (1) Administrative Due Process430 428 429 adjudicatory Art. United Harbor Pilots Association of the Philippines. COMELEC. such as the issuing rules and regulations. VIII. Office of the Ombudsman. Sec. 322 SCRA 17) A formal trial-type hearing is not at all times and in all instances essential to due process. and c. Rule/regulation must be published b. CA. 304 SCRA 473) 110 . and subject to the disapproval by the Supreme Court. and to submit any evidence one may have in support of his defense. are essential only when an administrative body exercises its quasi-judicial function. Law itself must declare as punishable the violation of administrative rule or regulation. (Corona v.
CA. NLRC. 215 SCRA 476) A party who chooses not to avail of the opportunity to answer the charges cannot complain of denial of due process. there is no denial of procedural due process. be actual or constructive. Inc. 4. and to introduce witnesses and relevant evidence in his favor. either through oral arguments or pleadings. Tiomico v. And a finding or decision by that tribunal supported by substantial evidence presented at the hearing or at least ascertained in the records or disclosed to the parties. an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of. Reasonable opportunity to appear and defend his rights. and hence can no longer be altered by administrative review. however. Under the 1987 Administrative Code.432 (2) Administrative Appeal and Review Administrative Appeal433 It refers to the review by a higher agency of decisions rendered by an administrative agency. 304 SCRA 216) 431 Arboleda v. Ablera v. CA.( DBP v. 111 .431 Administrative due process is recognized to include the right to: 1. 2. 303 SCRA 38 432 Air Manila. Where the litigants are given the opportunity to be heard. Administrative review A superior officer or department head may upon his or her own volition review a subordinate’s decision pursuant to the power of control. which will govern primarily in the absence of a specific law applicable.The essence of due process is simply to be heard. and one of competent jurisdiction. commenced by petition of an interested party. Balatbat. V. CA. Notice. subject to the caveat that a final and executory decision is not included within the power of control. of the institution of the proceedings that may affect a person’s legal right. A tribunal so constituted as to give him reasonable assurance of honesty and impartiality. (Domingo. Office of the Ombudsman. 302 SCRA 362. commenced by petition of an interested party. 3. administrative appeals from a decision of an agency are taken to the Department Head. COMELEC. 282 SCRA 256 433 It refers to the review by a higher agency of decisions rendered by an administrative agency. 38 SCRA 489 and Fabella v. Administrative appeals are established by the 1987 Administrative Code. or as applied in administrative proceedings. 313 SCRA 311. Jr. v. NLRC.(Ocampo v. supra) There can be no denial of due process where a party had the opportunity to participate in the proceedings but failed to do so.
By virtue of the power of control of the president over all executive departments. Castro 99 Phil. res judicata does not apply. But just like in the appellate courts.435 (3) Administrative Res Judicata The doctrine of res judicata applies only to judicial or quasijudicial proceedings and not to the exercise of purely administrative functions. 2000) 436 applies only to judicial and quasi-judicial proceedings not to exercise of administrative functions (Brillantes vs. by himself or through the Department Secretaries. Jur. or the law may provide that it shall become operative only upon the contingency or some certain fact or event. appellate administrative bodies may only pass upon errors assigned. or reverse the administrative decision of subordinate officials and employees. 108951. subject to the exceptions provided for by law or jurisprudence. March 7. Licensing and Rate-Fixing Powers Fact-Finding Power The power delegated by the legislature to an administrative agency to determine some fact or state of things upon which the law makes. alter. hence. GR No. Investigative. Fact-Finding. the President. DOLE. (Diamonon vs. 497) 437 1 Am. 2d 930‐931 112 . c. if deemed necessary. its own action depend. modify.437 434 435 pursuant to the “alter ego doctrine” The appellate administrative agency may conduct additional hearings in the appealed case.436 Administrative proceedings are non-litigious and summary in nature. before a party litigant can seek judicial intervention.434 may affirm. he must exhaust all means of administrative redress available under the law. the ascertainment of which is left to an administrative agency.Pursuant to the doctrine of exhaustion of administrative remedies. or intends to make.
441 Requisites of judicial review of administrative action 1. Judicial Recourse and Review441 Doctrine of Primary Administrative 438 439 Judicial action of a case is deferred pending the Pantranco South Express. or in suspending or revoking a license. Administrative action must have been completed or the principle of finality of administrative action. 191 SCRA 581.Investigative Power The power of an administrative agency to take into consideration the result of its own observation and investigation of the matter submitted to it for decision. 2. 113 .438 Licensing Power The action of an administrative agency in granting or denying.439 Rate Fixing Power It is the power usually delegated by the legislature to administrative agencies for the latter to fix the rates which public utility companies may charge the public. Inc. v Board of Transportation. franchise. in connection with other evidence presented at the hearing of the case. permit.1991 De Leon. Administrative Law. Administrative remedies must have been exhausted or the principle of exhaustion of administrative remedies.440 4. or certificate of public convenience and necessity. 2010 440 ibid.
relief must first be sought and obtained in the administrative body concerned before the Court will supply the remedy. Court of Appeals. ( Lopez v. CA. Inc v. Where a statute lodges exclusive original jurisdiction in an administrative agency. Before a party can invoke the jurisdiction of the courts of justice. In such a case. The Legal reason is that the courts should not act and correct its mistakes or errors and amend its decision on a given matter and decide it properly. specializes skills. 211 SCRA and Baguioro v. knowledge and resources are required for the resolution of factual and non-legal matters. 114 . if no motion to dismiss is filed on this ground.Jurisdiction442 determination of some issues which properly belong to an administrative body because their expertise. Noncompliance with the doctrine will deprive the complainant of a cause of action. the court will refuse to take up a case unless the agency has finally completed its proceedings. However. Court of Appeals. 184 SCRA 426) 444 Failure to exhaust administrative remedies will not affect the jurisdiction of the courts. The case is merely suspended until the issues resolvable by the administrative body are threshed out and fully determined (Industrial enterprises. Inc v. Basa. 342 SCRA) The application of the doctrine of primary jurisdiction does not call for the immediate dismissal of the case pending before the court. no judicial recourse can be made until all such remedies have been availed of and exhausted. CA. 442 443 or preliminary resort The doctrine does not warrant a court to arrogate unto itself authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence. Doctrine of Finality of Administrative Action No resort to courts will be allowed unless administrative action has been completed and there is nothing left to be done in administrative structure. there is deemed a waiver. which enjoins upon the judiciary a becoming a policy of non-interference with matters coming primarily within the competence of other department. 321 SCRA 106 and Province of Zamboanga del Norte v. which is a ground for a motion to dismiss the case. City of Manila. (Rosario v.443 Doctrine of Exhaustion of Administrative Remedies444 Whenever there is an available administrative remedy provided by law. 214 SCRA 437) One of the reasons for the doctrine of exhaustion of administrative remedies is the separation of powers. 303 SCRA 448) And the practical reason is that administrative process I intended to provide less expensive and speedier solution to disputes. he is expected to have exhausted all means of administrative redress afforded to him by law. (Roxas & Co.
Election Law 1.K. Suffrage 115 .
service in the AFP. employment in public or private service. initiative. In order to acquire a new domicile by choice. Disqualifications 1. on the days firearms laws. the Supreme Court treats domicile and residence and residence as synonymous terms. (Sec. 226 SCRA 406) 116 . Filipino citizenship.(2) an intention to remain there.a person may be registered as a voter although he is less than 18 years at the time 2. property or other substantive requirement shall be imposed on the exercise of suffrage. profession.it may be by birth or naturalization.The right and obligation of qualified citizens to vote in the election of certain national and local of the government and in the decisions of public questions submitted to the people. PNP or confinement or detention in government institutions. plebiscite. Age . 9. may register as voter. RTC. Any person who. 2. work in the military or naval reservations within the Philippines.at least 1 year in the the government or Philippines. such qualification. and (3) an intention to abandon the old domicile. Insane or incompetent persons as declared the day of election shall possess by competent authority. 2. RA 8189) In election cases. Residence . Any person sentenced by the final judgment to suffer imprisonment for not less than 1 year. shall not deemed to have lost his original residence. there must concur (1) residence or bodily presence in the new locality. The residence at the place chosen for the new domicile must be actual. Qualification and Disqualification of Voters Qualifications 1.445 No literacy. (a) any crime involving disloyalty to 3. educational activities. (Romualdez vs. on 3. 445 Any person who temporarily resides in another city municipality or country solely by reason of occupation. of registration may not have been reached the required period of residence but who. referendum and recall. Any person adjudged by final judgment of registration if he will be at least 18 on the of having committed day of election. It includes within its scope: election. and at least 6 months where he proposes to vote immediately preceding (b) any crime against national security the election.
be conducted during the period starting 120 days before a regular election and 90 days before a special election. R.446 446 Sec. No registration shall.3.A. 8. Registration of Voters The personal filing of application of registration of voters shall be conducted daily in the office of the Election Office during regular office hours. however. 8189 117 .
VIII. (Sec.) No motion for reconsideration is allowed.) Non-appearance is prima facie evidence the registered voter is fictitious (Sec.A. 39. 32(b). (ibid. 8189) 4. IX-C] Exclusion 1. Leaving copy in possession of sufficient discretion in residence.] Manner Notice stating the place day and hour of hearing shall be served through any of the following means: 1. Rule 45 of the RoC 118 . 8189) 2. Sec. Notice 4. 449 Sec. R. Art. id. 32 (c).4. 34. Inclusion and Exclusion Proceedings447 Jurisdiction Municipal or Metropolitan Trial Court Original and exclusive Jurisdiction Regional Trial Court Supreme Court Appellate jurisdiction (5 days)448 Appellate jurisdiction over RTC on question of law (15 days)449 447 Petitioners Inclusion 1. 32 (f). id. 8189) 2. Registered mail 2. (Sec. 5(2)(e). 2. 33. Petition for exclusion shall be sworn (Sec. Posting in city hall or municipal hall and two other conspicuous places in the city or municipality at least 10 days before the hearing (ibid. COMELEC [Sec.) 3. 2(6). 35 RA 8189) Procedure 1. R. (Sec. Personal delivery 3.) 448 Sec. 4. id. Representative of political party 3. (Sec.A. Election Officer (Sec. 2(6). COMELEC [Sec. id. Any registered voter in city or municipality 2. Private person whose application was disapproved by the Election Registration Board or whose name was stricken out from the list of waters (Sec.A. RA 8189) Exclusion – Any time except 100 days before a regular election or 65 days before special election. candidate or political party affected may intervene. IX – C] Period for Filing: Inclusion – Any day except 105 days before regular election or 75 days before a special election. Art. 33. Parties to be notified Inclusion and Exclusion – Election Registration Board – Challenged voters [Sec.) Decision cannot be rendered on stipulation of facts (ibid. 35 . Art. 24. id. Each petition shall refer only to only one precinct.) Any voter. R.
Those which refuse to adhere to the Constitution 4. and in order to participate in the party-list system. to entitle it to the benefits and privileges granted under the Constitution and the laws.450 a. A political party may refer to a local regional or national party existing and duly registered and accredited by the COMELEC. 24. 1.452 450 The following political parties cannot be registered. To acquire juridical personality. Feb. regional. 2004 452 Sec. 451 Laban ng Demokratikong Pilipino vs. a political party must be registered with the COMELEC. sectoral party or organization or a coalition of such parties or organizations. qualify for accreditation. accepting financial contributions from foreign governments or their agencies. Political Parties A political party is any organized group of persons pursuing the same ideology. Those which seeks to achieve their goals through unlawful means 3. and 2. political ideas or platforms of government and includes its branches or divisions. the group must register with the Commission on Elections by filing with the COMELEC not later than 90 days before the election a verified petition stating its desire to participate in the party-list system as a national.R. R. Those that are supported by any foreign government Grounds for Cancellation of Registration: 1. 161265. 3 (c). and to be entitled to the rights of political parties.451 b. the Commission on Elections may resolve matters involving the ascertainment of the identity of the political party and its legitimate officers. failure to obtain at least 10% of votes casts in constituency where party fielded candidates. Jurisdiction of the COMELEC over political parties Flowing from its constitutional power to enforce and administer all laws and regulations relative to the conduct of the election and its power to register and regulate political parties. 7941 119 .5. Registration In order to acquire juridical personality as a political party. COMELEC. G.A. Religious sects 2. No.
2 120 . and able to read and write Filipino or any other e. President and Vice President B. Local 1. or province or. the sangguniang panlalawigan. Sec. (Frivaldo vs. and preceding the day of the election.454 2. a registered voter. COMELEC.6. a resident of the Philippines for at least local language or dialect. a resident d. Candidates for the position of governor. his title to the office may be seasonably challenged. 174 SCRA 245 and Labor vs. Qualifications of Candidates453 A. the c. Candidacy a. municipality. 176 SCRA 1) 454 Art. city. Once any of the required qualifications is lost. or sangguniang bayan. voter in the barangay. or member of the 453 Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer’s active tenure. at least forty (40) years of age on the therein for at least one (1) year immediately day of the election. National 1. COMELEC. a registered a. district where he intends to be elected. sangguniang panlungsod. able to read and write. vice-governor. natural-born citizen of the Philippines. An elective local official must be a citizen of the Philippines. in the case of a member of b. VII. ten (10) years immediately preceding such election.
a resident of the Philippines for not 4. barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day. a registered voter in the district in which he shall be elected. Congressmen – District and Party – List Representatives 5. able to read and write. and 6. b. at least thirty-five (35) of years of age must be at least twenty-one (21) years of age on the day of the election.39. or municipalities d. f. Filing of Certificates of Candidacy (1) Effect of Filing 455 Sec. be at least twenty-one (21) years of age on election day. at least twenty -five ((25) of years of age on the day of the election. vice2.sangguniang panlalawigan. 3.455 f. Candidates for the position of mayor or c. b. except the party-list representatives. natural-born citizen of the Philippines. 3. and on election day. Candidates for the position of punong a. component cities. natural-born citizen of the Philippines. d. Candidates for the position of member of less than 2 years immediately preceding the the sangguniang panlungsod or sangguniang day of the election. able to read and write. vice-mayor of independent component cities. Candidates for the sangguniang kabataan must be at least fifteen (15) years of age but not more than twenty-one (21) years of age on election day. c. a registered voter. or mayor. a registered voter. a resident of the Philippines for not less than two (2) years immediately preceding the day of the election. Senators mayor or member of the sangguniang panlungsod of highly urbanized cities must a. bayan must be at least eighteen (18) years of age on election day. b. and e. LGC 121 .
457 (2) Substitution of Candidates If after the last day for the filing of certificates of candidacy.R. 78. 136. No. no substitution shall be allowed for any independent candidate. august 10. As early as in Abcede vs.P. 881 458 COMELEC Reso. the Supreme Court said that the Commission has no discretion to give or not to give due course to a certificate of candidacy filed in due from. the same political party may file a certificate of candidacy not later than mid‐ day of election day to replace the candidate who died. an official candid ate of a political party: (1) dies. id. 2004. 103 Phil. Fair Elections Act expressly repealed Sec. and he should be given the opportunity to present evidence in his behalf. 881. B. withdrew or was disqualified. 66 .459 (3) Ministerial duty of COMELEC to receive certificate Subject to its authority over nuisance candidates and its power to deny due course to or cancel a certificate of candidacy.P.458 However. OEC Sec. 158830.Appointive official Any person holding an appointive office or position. whether he is running for the same or a different position. B. requires that the candidate must be notified of the petition against him. and certified by. Such resignation is irrevocable. While the Commission may look into patent defects in the certificate. deny due course to or cancel a certificate of candidacy filed in due form.460 the COMELEC shall have only the ministerial duty to receive and acknowledge receipt of the certificate of candidacy. without proper proceedings. Accordingly. 881 461 Sec. including active members of the Armed Forces of the Philippines. 461 456 457 Sec. it may not go into matters not appearing on their face. 76. Imperial. 78. 9140 459 Ibid. (2) withdraws or is (3) disqualified for any cause a person belonging to. No. The candidate shall continue to hold office. 14.456 Elective official No effect. (Cipriano vs. Sec. 67 of B. shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. COMELEC. by itself. the COMELEC may not. and officers and employees in GOCCs. G.P. 460 Sec. which treats of a petition to deny due course to or cancel a certificate of candidacy on the ground that any material representation therein is false. 122 .
refuse to give due course to or cancel certificate of candidacy if shown that said certificate was filed: 1. 2. 216 SCRA 769) The COMELEC may motu proprio refuse to give due course or cancel a certificate of candidacy. (Nolasco vs. to put election process in mockery or disrepute. by other circumstances or acts which demonstrate that a candidate has no bona fide intention to run for office for which certificate has been filed. R.(4) Nuisance Candidates They are candidates who have no bona fide intention to run for the office for which the COC has been filed and would thus prevent a faithful election. 275 SCRA 762) The COMELEC can decide a disqualification case directly without referring it to its legal officers for investigation.COMELEC. 3. COMELEC. and the votes cast for him shall not be counted. BP 881) The proceeding shall be summary. and thus prevent a faithful determination of true will of electorate. 462 A petition filed after the election is filed out of time. (Loong vs. The petition shall be filed by any registered candidate for the same Office within 5 days from the last day of filing of certificates of Candidacy. (Sec. 6646 123 . supra) The decision shall be final and executory after 5 days from receipt unless stayed by the Supreme Court [Secs. 5(e) and 7. The petition may be filed at any time not later than 25 days from the time of the filing of the certificate of candidacy and shall be decided. not later than 15 days before the election. after due notice and hearing. to cause confusion among voters by similarity of names of registered candidates. 5 (a) and 7.464 (5) Effect of Disqualification After final judgment Any candidate who has been declared by final judgment to be disqualified shall not be voted for. 69. COMELEC may motu proprio or upon petition of an interested party.A. RA 6646] 463 under Section 74 of the Omnibus Election Code 464 Secs. (Nolasco. (4) Petition to Deny or Cancel Certificates of Candidacy462 A verified petition seeking to deny due course or to cancel a certificate of candi dacy may be filed by the person exclusively on the ground that any material repres entation contained therein as required463 is false.
or association of persons. L-81150.A. during the tendency thereof. a rejection of the party nomination on his behalf for the office of board member. (Vivero vs. in effect.467 465 Sec.Before final judgment If for any reason a candidate is not declared by final Judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election the Court or Commission shall continue with the trial and hearing of the action. inquiry or protest and. the complaint must be dismissed as a disqualification case but shall be referred to the Law Department for preliminary investigation. before the deadline for filing certificates of candidacy. 6 of R. B. COMELEC. 80. and the criminal.P. His filing under oath within the statutory period of his individual certificate for candidacy for the separate office of mayor was. 6. 466 Sec. or forany party. 73. 881 124 .466 7. OEC) There was no withdrawal of candidacy for the position of mayor where the candidate. 73. asked for his certificate of candidacy and intercalated the word “vice” before the word mayor and the following day wrote the election registrar saying that his name be included in the list of official candidates for mayor. L – 81059. 1989) Since his certificate of candidacy for the office of board member was filed by his party. and the said party had withdrawn the nomination which withdrawal was confirmed by the candidate under oath. (Perez vs. 6616 authorizes the continuation of proceedings for disqualification even after the elections if the respondent has not been proclaimed. COMELEC. Jan 12. 317 SCRA 641) A disqualification case may have two aspects. as in this case. to engage in an election campaign or partisan political activity except during the campaign period. Second paragraph of paragraph 2 of Res. Premature Campaigning It shall be unlawful for any person.465 (6) Withdrawal of Candidates A person who has filed a CoC may. 1992) 467 Sec. there was substantial compliance with Sec. withdraw the same by submitting to the COMELEC a written declaration under oath. personally appeared in the COMELEC office. . Sec. No. . the administrative. Jan 12. There is no provision in RA 6646 that treats of a situation where the complaint for disqualification is filed after the election. prior to the election. (Ramirez vs. order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. 2050 provides that where a complaint is filed after the election but before proclamation. COMELEC. upon motion of the complainant or any intervenor. id. Campaign a. which required only a preponderance of evidence to prove disqualification. whether or not a voter or candidate. . may. which necessitates proof beyond reasonable doubt to convict.
Code 125 . incentives. Public or private financial institutions 2. Public exhibition of a movie. 000 by the government or any of its subdivisions or instrumentalities 6. leaflets. Persons who hold contracts or sub-contracts to supply the government with goods and services. decals. Persons granted loans in excess of P25. Court of Appeals. 4. stickers the life or biography of a candidate and written or printed materials not more during campaign period.P. exemptions or similar privileges by the government 5. Pamphlets. Handwritten/printed letters cinematograph or documentary portrayed by 468 Thus. Corp. 881 470 Sec.000 7.b. Public exhibition of a movie. where an operator of a public utility disguised a contribution to a candidate for governor as loan. Forms Prohibited Campaign 1. 3. than 8 ½ inches by 14 inches 2. Persons granted franchises. Schools which received grants of public funds of at least P100. Lawful and prohibited election propaganda Lawful propaganda 1. Corporations470 c. 95 . Prohibited Contributions Those made directly or indirectly by any of the following: 1. cards. 8. cinematograph or documentary portraying 2. 36 (9). the promissory note is void: (Halili vs. Foreigners and foreign corporations469 9. B. Employees in the Civil Service or members of the Armed Forces. 83 SCRA 633) 469 Sec. Public utilities and those who exploit natural resources468 3.
Any published or printed political matter or broadcast of election propaganda by television or radio for or against a candidate or group of candidates to any public office shall bear and be reasonably legible or audible words “political advertisement paid for. Use of airtime for campaign of a media practitioner who is an official of a party or a member of the campaign staff of a candidate or political party. 3.472 d. 4. 244 SCRA 272) 2. 9006) 473 Scope 1.A. Other forms of election propaganda not prohibited by the Omnibus Election Code and R. broadcast or outdoor advertisements donated to the candidate or political party shall be printed.471 6. Prohibiting the posting of decals and stickers except in the common posting area authorized by the COMELEC is not valid (Adiong vs. may be displayed 5 days before the date of rally but shall be removed within 24 hours after said rally.473 7. COMELEC. Cloth. Limitations on expenses 471 472 Sec.A. Such written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC. paper or cardboard. Broadcast Media National Positions: 120 minutes for TV. and mass media practitioners may give their opinion regarding candidates. R. and authorized by the COMELEC. 180 minutes for radio Local Positions: 60 minutes for TV. published. 90 minutes for radio an actor or media personality who is himself a candidate. posters measuring. (National Press Club vs.” followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. 5. COMELEC. broadcast or exhibited without the written acceptance by the said candidate or political party.A. Paid print advertisements: ¼ page in broadsheets and ½ pages in tabloids thrice a week per newspaper. not more than 2 feet by 3 feet 3 by 8 ft. 2. allowed in announcing at the site on the occasion of a public meeting or rally. If the broadcast is given free or charge by the radio or television station. it shall be identified by the word “airtime for this broadcast was provided free of charge by” foll owed by the true and correct name and address of the broadcast entity. 3. 9006 Requirement 1. Mass media may report news relating to candidates. 9006. magazine or other publication during the campaign period.4. R. (Sec. 4. 207 SCRA 1) 126 . Print.
Other candidates – P3 per voter in his constituency c. Composition Board of Election Inspectors Board of Canvassers 474 475 Sec. A candidate who withdraws his certificate of candidacy must still file a statement of contributions and expenditures.Candidates a. Party/organization and coalition participating in the party – list system – P5 per voter Political party and coalition P5 per voter in the constituency where it has candidates. R. true and itemized statement of all contribution and expenditures in connection with election. 13. 7166 Pilar vs.475 8. within 30 days after day of election. President and vice president – P10 per voter b. COMELEC.474 e. 245 SCRA 759 127 . file offices of COMELEC the full.A. Candidate without political party – P5 per voter d. Board of Election Inspectors and Board of Canvassers a. Statement of contributions and expenses Every candidate and treasurer of political party shall. for the law makes no distinction.
476 Provincial: 1. or other citizens of known probity and competence may be appointed (Sec. in the order named: 1. as 476 If there are not enough public school teachers. absence. substitute members are the following. 478 Substitute members are officials in the city corresponding to the substitutes in the provincial board of canvassers 128 . Any other available appointive provincial official. and 3.A chairman and two members. 2. as vice chairman. as vice chairman. and 3. a principal of the school or the elementary school. Register of Deeds. 3. The municipal treasurer. Provincial auditor. teachers in private schools. The most senior district school supervisor. The city fiscal. and 3. The provincial fiscal. Clerk of Court nominated by the Executive Judge. as chairman. The provincial election supervisor or a lawyer in the regional office of the COMELEC. all of whom are public school teachers. 6646) 477 In case of non-availability.A.478 Municipal: 1. employees in the civil service. disqualification or incapacity. and 4. as chairman. The election registrar or a representative of the COMELEC. 2. or in his absence. as chairman.477 City: 1. 2. The provincial superintendent of schools as member. as member. R. 2. The city election registrar or a lawyer of the COMELEC. The city superintendent of schools. as vice chairman. 13.
137 SCRA 366 481 under Section 74 of the Omnibus Election Code Requirements: 1. that any material The/petition may be filed at any time not later than 25 days from the time of t he filing of the certificate of candidacy and shall be decided. Conduct the voting and counting of votes It has only the ministerial task of compiling In the polling place. Remedies and Jurisdiction in Election Law a.Material misrepresentation in the qualifications for elective office.member. and any other legal qualifications necessary to run for an elective office. Act as deputies of the COMELEC in supervision and control of the polling place. Powers Board of Election Inspectors Board of Canvassers 1. clerk of court nominated by the Executive Judge. COMELEC. or any other available appointive municipal officials 480 Guiao vs. not later than 15 days before the election. 3.482 479 Substitute members are the municipal administrator. Petition Not to Give Due Course to Certificate of Candidacy Maybe filed by the person exclusively on the ground representation contained therein as required481 is false. residency citizenship. misinform or hide a fact which would otherwise render a candida te ineligible. after due notice and hearing.Deliberate attempt to mislead. Maintain order within the polling place and its premises to keep access thereto open and unobstructed and to enforce obedience to its lawful orders. and adding the results as they appear in the returns transmitted to it. municipal assessor. 129 .479 b. which includes age. These two requirements must concur to warrant the cancellation of the certificate of candidacy. Perform such other functions as prescribed by the Code or by the rules of the COMELEC. and 4. 9. and 2.480 2.
b.484 482 483 Sec.b. suspended. namely: a. Comelec.R. The COMELEC has the power to declare a failure of election and this can be exercised motu proprio or upon verified petition. 1996) 484 What is common in these three instances is the resulting failure to elect. The election in any polling place has not been held on the date fixed on account of force majeure. 107814‐15. (Cawasa vs. 7166) The COMELEC shall call for the holding or continuation of the election on a date reasonably close to the date of the election not held. terrorism. B. 150469. G. violence. (Sec. transmission. terrorism. id.R. the location of polling places shall be the same as that of the preceding regular election. July 18. no election is held while in the second. 6. (Pasandalan vs. fraud. organization or coalition of political parties may file with the Law Department of the Commission a petition to disqualify a candidate on grounds provided by law. (Loong v.A. 2002) 130 . custody or canvass of the election returns cause a failure to elect. G. Petition to Declare Failure of Elections483 There are only 3 instances where a failure of elections may be declared. 78. 2002) The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. 4. No. After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election results in a failure to elect on account of force majeure. or other analogous causes. Comelec. Nos. (Sec. 881) In such election. 150312.P. COMELEC. and c. July 3. G. However. changes may be initiated by written petition of the majority of the voters of the precinct or agreement of all the political parties or by resolution of the Comelec after notice and hearing. fraud or other analogous causes. or which resulted in a failure to elect but not later than 30 days after the cessation of the cause of such suspension or failure to elect. the election is suspended. violence. The election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure. In the third instance. c. May 16. or other analogous causes. No. or duly registered political party. violence. In the first instance.R. The term failure to elect means nobody emerged as a winner. R. circumstances attending the preparation. Petition for disqualification Any citizen of voting age. terrorism. fraud.
224 SCRA 631) 131 . COMELEC. as when the Municipal Treasurer took over the canvassing without having been designated. 235 and 236486 in relation to the preparation.487 e. Election Protest488 Maybe filed by any candidate who has filed a certificate of candidacy and has been voted upon for the same office. 2. 3. COMELEC.230 SCRA 54) 2. or any matter raised under Sections 233. The protest was filed as a precautionary measure (Mitmug vs. COMELEC. Pre-Proclamation Controversy485 Any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission. Where the resolution of the issues raised would require the COMELEC to “pierce the veil” of election returns that appear prima facie regular.( CHU. terrorism.276 SCRA 405) The rule that the filing of a protest implies abandonment of the pre-proclamation case does not apply if: 1. Grounds 1. (Sebastian VS COMELEC. the board of canvassers and the COMELEC are not to look beyond or behind election returns which are on their face regular and authentic returns. The board of canvassers was improperly constituted. if he did not explain why. falsified or materially defective returns which appear as such on the face.319 SCRA 482 488 The filing of an election protest results in abandonment of a pre-proclamation case even if the protest alleged it was filed as a precautionary measure. COMELEC.d. infra) A pre-proclamation controversy is limited to an examination of the election returns on their face. the remedy is a regular election protest. 327 SCRA 406) 486 see Reference 487 Chu vs. (Saman vs. transmission. irregularities or 485 Time to file Within 10 days from the proclamation of the results of the election In pre-proclamation controversy. custody and appreciation of the election returns. To require the COMELEC to examine the circumstances surrounding the preparation of the returns would run counter to the rule that a pre-proclamation controversy should be summarily decided.The COMELEC as a general rule need not go beyond the face of the returns and investigate alleged election irregularities.( Laodenio vs. The office of pre-proclamation controversy is limited to incomplete. 234. Fraud. receipt.
4. Ineligibility or 2. Prosecution of Election Offenses The COMELEC is vested with the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and prosecution of electi on offenses punishable under the Omnibus Election Code. disloyalty Time to file Within 10 days from the proclamation of the results of the election to the Republic of the Philippines 10. Grounds 1.489 489 Sec. 265. during or after the casting and counting of votes e. B. illegal acts committed before. 881 Omnibus Election Code 132 . Quo Warranto Filed by any registered voter in the constituency.P.
L. Original charters or special laws or 2. Local Governments 1. Public Corporations a. general corporation law as a stock or non‐ stock corporation 133 . Concept One formed and organized for the government of a portion of the State. (1) Distinguished from Government-Owned or Controlled Corporations (GOCCs) Public corporation Purpose Administration of local government Performance of functions relating to public needs whether Governmental or Proprietary in nature. Who creates By the state either by general or special act By Congress or by incorporators GOCCs How created By legislation 1.
Classifications Quasi-Corporations Municipal Corporations Public corporations created as A body politic and corporate constituted by incorporation agencies of State for narrow of inhabitants of city or town for purposes of local and limited purpose. Functions Public/Governmental It acts as an agent of the State for the government of the territory and the inhabitants within the municipal limits. it shall exercise powers as political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory. Municipal Corporations a. Legal creation or incorporation 2. one formed and organized for the government of a portion of the State.b. Territory b. As such. it exercises by delegation a part of the Private/Proprietary It acts in a similar category as a business corporation. Elements 1. 2. Inhabitants 4. Nature and Functions Nature Every local government unit created or organized is a body politic and corporate endowed with powers to be exercised by it in conformity with law. it stands for the community in the administration of 134 . Corporate name 3. performing functions not strictly governmental or political. government thereof or as agency of State to assist in civil government of the country.
Income requirement Must be sufficient on acceptable standards to provide for all essential government facilities and services and special functions commensurate with the size of its population as expected of the local government unit concerned.5M Population requirement To be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned. local affairs. Highly Urbanized City – P 50M c. Merger or Dissolution Creation and Conversion Plebiscite requirement490 Must be approved by majority of the votes cast in a plebiscite called for such purpose in the political unit or units directly affected. City – P 20M491 d. Province – P 20M b. It acts as a separate entity for its own purposes and not as a subdivision of the State. 9009 amending Sec. Division.sovereignty of the State. R. c. Requisites for Creation. Average annual income for the last consecutive year should be at least: a. Municipality – P 2. The required minimum population shall be: a. Barangay – 2K 490 The plebiscite must be participated in by the residents of the mother province in order to conform to the constitutional requirement. 450 of LGC 135 .A. 491 100M. Conversion.
Province – 250K Land requirement Must be contiguous. Likewise. Municipality – 25K c. ordinance abolishing an LGU shall specify the province. R. City – 100 sq. Municipality – 50 sq. as certified by the national agencies to Congress or to the Sanggunian concerned. 495 Sec. or barangay with which the local government unit 492 493 Sec. 494 Sec. City – 150K d. population or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under the LGC.But 5K in: i.495 Abolition A local government unit may be abolished when its income. 450. population or land area shall not be reduced to less than the minimum requirements. city. Area requirements are: a. Highly urbanized cities b. Metro Manila ii. municipality.000 sq. The income. unless it comprises two or more islands or is separated by a local government unit.8. 442. Province – 2. id.km494 Division and Merger The division and merger of local government units shall comply with the same requirements for their creation. and sufficient to provide for such basic services and facilities. the income classification of the original local government unit shall not fall below its current income classification prior to such division. 461.A. properly identified by metes and bounds. km493 c. Likewise. km492 b. the law or. 7160 Sec. ibid 136 . id.
137 . b. just compensation and due process of law. powers. It is the granting of more powers. which interfere with personal liberty or property to promote the general welfare or the common good. It does not make the local government sovereign within the state or an “ imperium in imperio.498 Effects of Division of LGUs: On the legal existence of the original corporation: The division of municipal corporation extinguishes the corporate existence of the original municipality. (Heirs of Suguitan vs. rights and obligations falling within its territorial jurisdiction. City of Mandaluyong. public use. taking. when a municipal corporation is divided into two or more municipalities. On the property. Police Power497 The power of promoting public welfare by restraining and regulating the use of liberty and property. Powers of Local Government Units (LGUs) a. 498 Private property already devoted to public use can still be a subject of expropriation by Congress but not by LGUs. Principles of Local Autonomy Local Autonomy is self-governing. LGC. authority. The exercise by LGUs of the power of eminent domain are subject to the usual constitutional limitations such as necessity.496 3. each municipality acquires title to all the property. 328 SCRA 137) An LGU may immediately take possession of the property upon filing of expropriation proceedings and deposit in court of 15% of the FMV of the property. Eminent Domain The power to expropriate private property has been delegated by Congress to LGUs under Section 19.sought to be abolished will be incorporated or merged.” 4. The promulgation of the ordinance authorizing the local chief executive to exercise the power must be promulgated prior to the filing of the complaint for eminent domain with the proper court. responsibilities and resources to the lower or local levels of a government system. 496 Sec. powers and rights of the original corporation: Unless the law provides otherwise. private property. The principle of local autonomy under the 1987 Constitution simply means decentralization. ibid 497 General Welfare Clause Police power concerns government enactments. and not after the court shall have determined the amount of just compensation to which the defendant is entitled.9.
alley. Must not be partial or discriminatory. and adequate substitute for the public facility shall be provided. the owner. Temporary closure may be made during an actual emergency. An LGU shall file a complaint for expropriation on the strength of an ordinance and not a mere resolution passed by the Sanggunian (Municipality of Paranaque vs. fees.) 502 Sec. 3. park. 7160 Additional limitations in case of permanent closure: i. 499 The additional limitations on the exercise of the power of eminent domain by LGUs are.501 d. Exercised only by the local chief executive. for the support of government and for all public needs. Adequate provision for the maintenance of public safety must be made. 1987 Cons. 138 .The determination of whether there is genuine necessity for the exercise of the power of eminent domain is a justiciable question when exercised by the LGUs and generally a political question when exercised by Congress. 501 Each local government unit shall have the power to create its own sources of revenues and to levy taxes. and charges shall accrue exclusively to the local governments (Sec. and not accepted by. consistent with the basic policy of local autonomy. Only after a valid and definite offer had been made to. public rallies. fiesta celebrations.502 e. it need not be granted by the constitution. thus. for the benefit of the poor and the landless. ii. fees. Art. The property may be used or conveyed for any purpose for which other real property may be lawfully used or conveyed. 292 SCRA 676) 500 The power to tax is inherent. R. Closure and Opening of Roads A local government unit may. 21. Taxation is the method by which these contributions are exacted. Legislative Power (1) Requisites for Valid Ordinance i. or square falling within its jurisdiction. as follows: 1. X. VM Realty Corp. provided that in case of permanent closure. but no freedom park shall be closed permanently without provision for its transfer or relocation to a new site. pursuant to an ordinance. permanent or temporarily close or open any local road. acting pursuant to a valid ordinance. Must not contravene the Constitution and any statute.499 c. and charges subject to such guidelines and limitations as the Congress may provide. Taxing Power500 Taxes are enforced proportional contributions from persons and property levied by the state by virtue of its sovereignty. 2. such ordinance must be approved by at least 2/3 of all the members of the sanggunian. etc. 4. For public use or purpose or welfare.A. ii. and when necessary.. Must not be unfair or oppressive. 5. Such taxes. ii.
and vi. The Comelec shall certify and proclaim the results of the said referendum. upon proper authority. donation. Must be general in application and consistent with public policy. (2) Local Initiative and Referendum Local Initiative It is the legal process whereby the registered voters of a local government unit may directly propose. Initiative shall extend only to subjects or matters which are within the legal powers of the sanggunian to enact. 45 days (in case of municipalities) and 30 days (in case of barangays). sale. Cuison. The local government unit may alienate only patrimonial property. in any manner allowed by law506 ii. Corporate Powers 1) To Sue and Be Sued The rule is that suit is commenced by the local executive. Must not prohibit. The local government unit may acquire real or personal. cities. 506 e. etc 139 . but may regulate trade which is not illegal per se. tangible or intangible property. v.503 Local referendum It is the legal process whereby the registered voters of the local government units may approve. bring the action to prevent unlawful disbursement of City funds. Must not be unreasonable. municipalities and barangays.504 f.g.. 505 City Council of Cebu vs. 504 The local referendum shall be held under the control and direction of the Comelec within 60 days (in case of provinces).505 2) To Acquire and Sell Property i. except when the City Councilors.iv. 503 The power of local initiative shall not be exercised more than once a year. amend or reject any ordinance enacted by the sanggunian. enact or amend any ordinance. by themselves and as representatives of or behalf of the City. 47 SCRA 325. It may be exercised by all registered voters of the provinces. upon the authority of the Sanggunian.
Municipal Council of Pozorrubio. Town plazas are properties of public dominion.iii.. but only for the duration of an emergency. Villegas. the Statute of Frauds 512 supra 140 . there must be an actual appropriation and a certificate of availability of funds 511 e. Unless otherwise provided by the Code. is governmental or public property. no contract may be entered into by the local chief executive on behalf of the local government unit without prior authorization by the sangguniang concerned. and cannot be the subject of lease or other contractual undertaking.508 v. Such contract cannot be ratified or validated. officer or agent. In the absence of proof that the property was acquired through corporate or private funds. 55 SCRA 656 Espiritu vs. ii. they may be occupied temporarily. And.509 3) To Enter Into Contracts (a) Requisites i. The contract must comply with the formal requirements of written contracts.510 iv. 102 Phil. The contract is entered into by the proper department. 154 SCRA 142 510 i. the municipal resolution effectively terminated the agreement.511 (b) Ultra Vires Contracts When a contract is entered into without compliance with the first and the third requisites. iii. board. even assuming the existence of a valid lease of the public plaza or part thereof.g. thus. Rebuco vs.512 the same is ultra vires and is null and void. when expenditure of public fund is to be made. Jarencio. committee. The contract must comply with certain substantive requirements. the presumption is that it came from the State upon the creation of the municipality and. implied or inherent power to enter into the particular contract. for it is settled that the police power cannot be surrendered or bargained away through the medium of a contract. Pangasinan . 866 509 Villanueva vs. The local government unit has the express..e. Castaneda. A public plaza is beyond the commerce of man. Ratification of defective municipal contracts is possible only when 507 508 Salas vs. 48 SCRA 734.507 iv.
bridges.there is non-compliance with the second and/or fourth requirements above.6. streets.514 c.Local government units and their officials are not exempt from liability for death or injury to persons or damage to property.516 Liability for Tort. g. NCC 515 Art. local government unit is liable. as much as possible. 34. 2189.A. The local government unit is liable in damages for death or injuries suffered by reason of the defective condition of roads. 2180. h. R. id. be settled amicably.515 d. The State is responsible when it acts through a special agent. id. Settlement of Boundary Disputes Boundary disputes between and among local government units shall. If the local government unit is engaged in governmental functions. it is not liable. par. Liability of LGUs Specific provisions making LGUs liable: a. The local government unit is subsidiarily liable for damages suffered by a person by reason of the failure or refusal of a member of the police force to render aid and prosecution in case of danger to life and property. 141 . Ratification may be express or implied. Boundary disputes involving two or more municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan concerned. Liability for damages. 24. 516 Art. 513 514 Sec. If engaged in proprietary functions. To this end: a. b. Boundary disputes involving two or more barangays in the same city or municipality shall be referred for settlement to the sangguniang panlungsod or sangguniang bayan concerned.513 b. 7160 Art. a. b. public buildings and other public works.
Boundary disputes involving municipalities or component cities of different provinces shall be jointly referred for settlement to the sanggunians of the provinces concerned. Sanggunian members according to ranking b. d. 7160 Secs. 44-46.519 e. Boundary disputes involving a component city or municipality on the one hand and a highly urbanized city on the other. d. 142 . a. Punong barangay i. or two or more highly urbanized cities. Second highest ranking sangguniang barangay member c. Succession of Elective Officials Rules:518 A. highly urbanized cities and independent component citiesappointment by the President ii. id. Provinces. shall be jointly referred for settlement to the respective sanggunians of the parties. fails to qualify.A. is removed from office. Permanent vacancies: A permanent vacancy arises when an elective local official fills a higher vacant office.517 i. Highest ranking sanggunian member ii. voluntarily resigns. Governor and Mayor i. Component city and municipality. 519 Sec. Sangguniang barangay. Ranking in the sanggunian shall be determined on the basis of the proportion of the votes obtained to the number of registered votes in each district. 44.c. dies.appointment by mayor 517 518 Sec. Sanggunian: i. R. refuses to assume office. or is permanently incapacitated to discharge the functions of his office. 118 a-d. id. Vice Governor and Vice Mayor ii. Ties will be resolved by drawing of lots.appointment by governor iii.
Culpable violation of the Constitution 3. 6. 2. suspended. 143 . 45. 520 A nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non. vii. Disloyalty to the Republic of the Philippines. shall be filed before the sangguiniang panlungsod or sangguniang bayan concerned. If the member does not belong to any party. bayan and barangay. Vacancy in the representation of the youth and the barangay in the sanggunian shall be filled by the official next in rank of the organization. oppression. 7. 5. Except for the sangguniang barangay. misconduct in office. except in the case of members of the sangguniang panlalawigan. Abuse of authority. the appointee shall come from the political party of the member who caused the vacancy. foreign citizenship or residence or the status of elective barangay officials. Dishonesty. vi.520 v. panlungsod. gross negligence. 4. and any appointment without such nomination and certificate shall be null and void and shall be a ground for administrative action against the official concerned. whose decision shall be final and executory. Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor. id. or dereliction of duty. Discipline of Local Officials (1) Elective Officials (a) Grounds An elective local official may be disciplined. the appointee shall be recommended by the sanggunian. or acquisition of.521 j. 521 Sec. The appointee for the sangguniang barangay shall be recommended by the sangguniang barangay.iv. Unauthorized absence for 15 consecutive working days. or removed from office on any of the following grounds: 1. Application for.
When the evidence of guilt is strong. and in the event several administrative cases are filed against the respondent. pursuant to R. 523 Provided that any single preventive suspension shall not extend beyond 60 days. if the respondent is an elective official of a province. By the mayor. he cannot be suspended for more than 90 days within a single year on the same ground or grounds existing and known at the time of the first suspension. a highly urbanized or an independent component city. Given the gravity of the offense. a highly urbanized or an independent component city. 108072. By the governor. No.R. 3. After the issues are joined.(b) Jurisdiction 1. 3. By the mayor. (c) Preventive Suspension Who may impose 1. there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. if the respondent is an elective official of the barangay. 6770. 1995).523 522 The authority to preventively suspend is exercised concurrently by the Ombudsman. if the respondent is an elective local official of a component city or municipality. By the President. the same law authorizes a preventive suspension of six months ( Hagad vs. By the governor. Gozo-Dadole. if the respondent is an elective official of a province. 2. and 3. 2. G. if the respondent is an elective official of the barangay.522 When may be imposed At any time: 1. if the respondent is an elective local official of a component city or municipality. 2. Dec.A. 144 . By the President. 12.
Dishonesty 3.526 2. in the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and 524 525 Sec. within 30 days from receipt thereof. Gross Misconduct: irregularity in official duties. 7160 Common Grounds 526 liability for gross misconduct may arise when the act. The sangguniang panlalawigan. Abandonment 4.(d) Removal A verified complaint against any erring local elective official shall be filed to the Office of the President if the official is of the province or city. 2. The Office of the President. or to the Sangguniang Bayan or Panlunsod in case of barangay officials. where such act was committed in the workplace or where there is final conviction in a criminal case 145 . 61. to the Sangguniang Panlalawigan in case municipal elective officials.A. Gross Negligence (e) Administrative Appeal Decisions may.524 Grounds:525 1. be appealed to: 1. R. in the case of decisions of component cities’ sangguniang panlungsod and the sangguiniang bayan. although not one of the official duties.
although other officials of the barangay may be appointed by the punong barangay. Population Officer 527 In the barangay. Accountant e. Information Officer q. Administrator k. 469-490. Secretary to the Sanggunian b. Budget Officer f. Planning and Development Coordinator g. Decisions of the Office of the President shall be final and executory. Agriculturist m. Social Welfare and Development Officer n. Engineer h. Health Officer i. Cities and Provinces528 a. Legal Officer l. Treasurer c.A. Architect p. the mandated appointive officials are the Barangay Secretary and the Barangay Treasurer. (f) Doctrine of Condonation Condonation by the people of the offense when an incumbent official is reelected. R. 528 Secs. Cooperatives Officer r. Assessor d. Civil Registrar j.independent component cities. 7160 146 . Environment and Natural Resources Officer o. (2) Appointive Officials527 Officials common to all Municipalities.
by the registered voters of a local government unit to which the local elective official subject to such recall belongs. city or municipal officials shall be validly initiated through a resolution adopted by a majority 147 . vice mayors and sanggunian members of the municipalities and component cities. Recall of provincial. By a preparatory recall assembly530 529 The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress. Two modes of initiating recall: i. Provincial level: All mayors. and in cases where sangguniang panglungsod members are elected by district. iv. all elective municipal officials in the district.s. By whom exercised. Limitations on Recall: 1. Legislative district level: Where sangguniang panlalalwigan members are elected by district. The official sought to be recalled is automatically a candidate. ii. Procedure for initiating recall by preparatory recall assembly: A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding against any elective official in the local government unit concerned. No recall shall take place within one year from the date of the official’s assumption to office or one year immediately preceding a regular local election. 530 composed of the following: i. iii. Municipal level: All punong barangay and sangguniang barangay members in the municipality. 2. City level: All punong barangay and sangguniang barangay members in the city. 1. Veterinarian t. 2. General Services Officer k. Recall529 Termination of official relationship of an elective official for loss of confidence prior to the expiration of his term through the will of the electorate. Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. Recall shall be effective upon the election and proclamation of successor receiving the highest number of votes. all elective barangay officials in the district.
1997. city. 133495. By the registered voters of the local government unit531 l. Cariño v. XII . XII 536 Sec. minerals. Comelec.ii. Sept. No local elective official shall serve for more than three consecutive terms in the same position. The term of office of barangay officials and members of the sangguniang kabataan shall be for five years. Director of Land. 2002 535 Art. became Mayor in 1989. Thus. 2. 75 Phil 890) 148 . like a recall election is no longer covered by the prohibition. No. 1998 534 Socrates vs. Regalian Doctrine536 All lands of the public domain. November 12. 154512. which shall begin after the regular election of barangay officials on the second Monday of May.533 After three consecutive terms. all forces of potential energy. of all the members of the preparatory recall assembly concerned during its session called for that purpose. municipal or barangay official may also be validly initiated upon petition by at least 25% of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected. forests or timber.534 M. 531 Initiation of recall by registered voters: Recall of a provincial.532 The three-term limit on a local official is to be understood to refer to terms for which the official concerned was elected. fisheries.universal feudal theory that all lands were held from the Crown (Holmes. even if elected as such in 1992 and 1995. Insular Government. G. 532 R. 3. flora and fauna. wildlife. starting from noon of June 30.A. Exception: any land in the possession of an occupant and of his predecessors-in-interest since time immemorial.R. a person who was elected Vice Mayor in 1988 and who.R. and other mineral oils. coal. Any other subsequent election. or such date as may be provided by law. 212 US 449). and other natural resources are owned by the State. No. waters. may still be eligible to run for the position of Mayor in 1998. 8524 533 Borja v. National Economy and Patrimony535 1. Term Limits Three (3) years. petroleum. because of the death of the Mayor. except that of elective barangay officials. (Oh Cho v. Comelec. Art. G. 1992. an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term.
the size of lands of the public domain which may be acquired. homestead. 13 149 . Exploration. Nationalist and Citizenship Requirement Provisions Lands of the public domain are classified into agricultural. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. when the national interest dictates. 12 540 Sec. the State shall give preference to qualified Filipinos. and not to exceed one thousand hectares in area. forest or timber. Private corporations or associations may not hold such alienable lands of the public domain except by lease. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. and utilization of natural resources shall be under the full control and supervision of the State. or leased and the conditions therefor.538 The State shall promote the preferential use of Filipino labor.537 The Congress shall. 10 539 Sec. and development. and concessions covering the national economy and patrimony. reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens. The State may directly undertake such 537 538 Sec. Taking into account the requirements of conservation. or grant. certain areas of investments.2. In the grant of rights. developed. Citizens of the Philippines may lease not more than five hundred hectares. ecology. renewable for not more than twenty-five years. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. domestic materials and locally produced goods.539 The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity. the Congress shall determine. by purchase. development. or acquire not more than twelve hectares thereof. held. mineral lands and national parks.540 3. 3 Sec. Alienable lands of the public domain shall be limited to agricultural lands. Development and Utilization of Natural Resources The exploration. or such higher percentage as Congress may prescribe. and subject to the requirements of agrarian reform. privileges. upon recommendation of the economic and planning agency. by law. and adopt measures that help make them competitive. for a period not exceeding twenty-five years.
The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration. with priority to subsistence fishermen and fish workers in rivers. or repeal by the Congress when the common good so requires. based on real contributions to the economic growth and general welfare of the country. The State shall protect the nations marine wealth in its archipelagic waters. In such agreements. The President shall notify the Congress of every contract entered into in accordance with this provision. bays. lakes. and other mineral oils according to the general terms and conditions provided by law. allow small-scale utilization of natural resources by Filipino citizens. Authority and Certificates for Public Utilities No franchise. and reserve its use and enjoyment exclusively to Filipino citizens. In cases of water rights for irrigation. 2 150 . certificate. and exclusive economic zone. water supply. and utilization of minerals. Such agreements may be for a period not exceeding twenty-five years. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital. territorial sea. beneficial use may be the measure and limit of the grant. by law. the State shall promote the development and use of local scientific and technical resources. within thirty days from its execution. The Congress may. as well as cooperative fish farming. or authorization be exclusive in character or for a longer period than fifty years. The State shall encourage equity participation in public utilities by the general public. or industrial uses other than the development of waterpower. and lagoons. or corporations or associations at least 60 per centum of whose capital is owned by such citizens. and all the 541 Sec. nor shall such franchise. fisheries. at least sixty per centum of whose capital is owned by such citizens. renewable for not more than twenty-five years. development. petroleum. joint venture. or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines. and under such terms and conditions as may be provided by law. Franchises. certificate. or production-sharing agreements with Filipino citizens. alteration.541 4.activities. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment. or it may enter into co-production.
and all economic agents shall contribute to the common good. 6.543 Notwithstanding the provisions of Section 7 of this Article. Acquisition. establish. Practice of Professions The sustained development of a reservoir of national talents consisting of Filipino scientists. Ownership and Transfer of Public and Private Lands Save in cases of hereditary succession. The practice of all professions in the Philippines shall be limited to Filipino citizens. 8 545 Sec. subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. entrepreneurs. or associations qualified to acquire or hold lands of the public domain. subject to limitations provided by law. 14 546 Sec. No combinations in restraint of trade or unfair competition shall be allowed.546 8. Individuals and private groups.executive and managing officers of such corporation or association must be citizens of the Philippines. 6 547 Sec. cooperatives. high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private 544 lands. managers. no private lands shall be transferred or conveyed except to individuals.542 5.545 7. shall have the right to own.547 N. corporations. The State shall encourage appropriate technology and regulate its transfer for the national benefit. and operate economic enterprises. Organization and Regulation of Corporations. Restraint of Trade and Unfair Competition The State shall regulate or prohibit monopolies when the public interest so requires. including corporations. 19 151 . Monopolies. professionals. Social Justice and Human Rights548 542 543 Sec. 7 544 Sec. Private and Public The use of property bears a social function. and similar collective organizations. 11 Sec. save in cases prescribed by law.
XIII . or detention facilities. and provide for preventive measures and legal aid services to the under-privileged whose human rights have been violated or need protection.creation of economic opportunities based on freedom of initiative and self-reliance. prisons. id. Investigate. or their families.549 2. use and disposition of property and its increments. Monitor the Philippine Government's compliance with international treaty obligations on human rights. Establish a continuing program of research. 1 and 2. Recommend to Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights. 550 composed of a Chairman and four Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. 3.regulation of acquisition. and . education. ownership. Provide appropriate legal measures for the protection of human rights of all persons within the Philippines. and cite for contempt for violations thereof in accordance with the Rules of Court.Secs. 548 549 Art. Commission on Human Rights550 Powers and functions: 1. on its own or on complaint by any party. 4. 152 . Exercise visitorial powers over jails. 5. 2. 7. 6.equitable diffusion of wealth and political power for common good. and information to enhance respect for the primacy of human rights. Adopt its operational guidelines and rules of procedure. all forms of human rights violations involving civil and political rights.1. . Concept of Social Justice Social Justice as envisioned by the Constitution: . as well as Filipinos residing abroad.
Arts. Education. Culture and Sports 1. Request the assistance of any department. or agency in the performance of its functions. 551 O. 18 153 . Science. Technology.8. and 9. Academic Freedom Aspects: 551 Sec. 10. bureau. 9. Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority. Appoint its officers and employees in accordance with law. office. Perform such other duties and functions as may be provided by law.
to the student . freedom from institutional censorship or discipline. 3. April 3. who may be admitted to study (Miriam College Foundation v. who may teach. subject to the adequate performance of his other academic duties. The Civil Service Commission has no authority to force it to dismiss a member of its faculty even in the guise of enforcing Civil Service Rules. how shall it be taught. Civil Service Commission. 2000).right to enjoy in school the guarantee of the Bill of rights553 P. 127930. Concepts 552 Freedom to determine for itself on academic grounds: a. 185 SCRA 523 154 .(UP v. experimentation and creation. to the institution – to provide that atmosphere which is most conducive to speculation. Public International Law 1. GR No. Dames. freedom in research and in the publication of the results. b. freedom in the classroom in discussing his subject. GR No.552 2. CA. and d. less controversial matters which bear no relation to the subject. c. As part of its constitutionally enshrined academic freedom. December 15. to the faculty a. c. what may be taught.132860.1. b. limited by his special position in the community. 2001) 553 Non v. the University of the Philippines has the prerogative to determine who may teach its students.
It is a body of legal principles, norms and processes which regulates the relations of States and other international persons and governs their conduct affecting the interest of the international community as a whole. The body of legal rules, which apply between sovereign states and such other entities as have been granted international personality. a. Obligations Erga Omnes A legal term describing obligations owed by states towards the community of states as a whole.554 All states have a legal interest in its compliance, and thus all States are entitled to invoke responsibility for breach of such an obligation.555 The concept was recognized in the International Court of Justice's decision in the Barcelona Traction case, where it said: "An essential distinction should be drawn between the obligations of a State towards the International community as a whole, and those arising vis-a-vis another State In the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the Importance of the rights Involved, all States can be held to have a legal Interest In their protection; they are obligations erga omnes. Such obligations derive, for example. In contemporary International law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, Including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered Into the body of general international law...; others are conferred by International Instruments of a universal or quasi universal character." b. Jus Cogens A norm accepted and recognized by the international community/of States as a whole as a norm from which no derogation is permitted and which canbe modified only by a subsequent norm of general international law having the same character.556
Examples of erga omnes norms include piracy, genocide, slavery, torture, and racial discrimination. Case Concerning The Barcelona Traction, ICJ 1970 556 Art. 53, Vienna Convention on the Law of Treaties Examples: (1) prohibition against the unlawful use of force; (2) prohibition against piracy, genocide, and slavery
c. Concept of Aeguo Et Bono It is a judgment based on considerations of fairness, not on considerations of existing law, that is, to simply decide the case based upon a balancing of the equiti es.557 This is the basis for a decision by an international tribunal on the grounds of justice and fairness - equity overrides all other rules of law. 2. International and National Law International Law National law
The law that deals with the conduct of states A law or group of laws that apply to a single and international organizations, their country or nation, within a determined relations with each other and, in certain territory and its inhabitants. circumstances, their relations with persons, natural or juridical.558
Adopted by states as a common rule of Action.
Issued by a political superior for observance.
Regulates relation of state and other international persons.
Regulates relations of individuals among themselves or with their own states.
Derived principally from treaties, Consists mainly of enactments from the international customs and general principles lawmaking authority of each state. of law.
Resolved thru state‐to‐state transactions.
Redressed thru local administrative and judicial processes.
Collective responsibility because it attaches Breach of which entails individual directly to the state and not to its nationals. Responsibility.
Brownlie, 2003 American Third Restatement
3. Sources Primary Secondary Sources
a. Treaties- the general rule is that the treatya. Decisions of international tribunals to be considered a direct source of international law, it must be concluded b. Writings and teachings of the most by sizable number of states and thus reflect highly qualified publicists of various nations. the will or at least the consensus of the family of nations. b. Custom- a practice which has grown up between states and has come to be accepted as binding by the mere fact of persistent usage over a long period of time. Custom is distinguished from usage in that the latter while also a long established way of doing things by states, is not coupled with the conviction that it is obligatory and right. c. General Principles of Law- mostly derived from the law of nature and are observed by the majority of states because they are believed to be good and just.559
4. Subjects A subject of international law is an entity with capacity of possessing inter national rights and duties and of bringing international claims. a. States
e.g. prescription, estoppel, consent, res judicata and pacta sunt servanda
A state is a group of people, living together in a fixed territory, organized for political ends under an independent government, and capable of entering into international relations with other states. b. International Organizations May be vested with international personality, provided that they are nonpolitical and are autonomous and not subject to control by any state.560
c. Individuals Although traditionally, individuals have been considered merely as objects, not subjects, of international law, they have also been granted a certain degree of international personality under a number of international agreements. 5. Diplomatic and Consular Law561 6. Treaties Treaty is a formal agreement, usually but not necessarily in writing, which is entered into by states or entities possessing the treaty-making capacity, for the purpose of regulating their mutual relations under the law of nations.562 An international agreement concluded between states in written form and governed by international law whether embodied in a single instrument or in two or more related instruments.563 7. Nationality and Statelessness Nationality Membership in a political community with all its concomitant rights and obligations.564
Statelessness The condition or status of an individual who is born without any nationality or who
e.g. ILO, FAO, WHO See Reference 562 As a rule, a treaty is binding only on the contracting parties, including not only the original signatories but also other states which, although they may not have participated in the negotiation of the agreements, have been allowed by its term to sign it later by a process known as accession. 563 Vienna Convention on the Law of Treaties, 1969 564 An individual acquires the nationality of the state where he is born jure soli or the nationality of his parents jure sanguinis.
the act or omission constitutes an international delinquency. 8. 2. from the traditional viewpoint. powerless to assert any right that otherwise would be available to him under international law where he is a national of a particular state. Territoriality principle Vests jurisdiction in state where offense was committed. State responsibility 1. Nationality principle and statelessness Nationality principle Vest jurisdiction in state of offender. 159 .568 Statelessness 565 A stateless individual is. 15. 566 see Reference 567 Art. id. NCC 568 Art. Doctrine of state responsibility A state may be held liable for injuries and damages sustained by the alien while in the territory of the state provided: 1. and 3. Treatment of Stateless Individual . Vienna Convention on the Law of Treaties566 7. injury to the claimant State indirectly because of damage to its national. Jurisdiction of States a. the act or omission is directly or indirectly imputable to the State.international conventions provide that stateless individuals are to be treated more or less like the subjects of a foreign state. 14.565 a. Any wrong suffered by him through the act of omission of a state would be damnum absque injuria for in theory no other state had been offended and no international delinquency committed as a result of the damage caused upon him.It is the tie that binds the individual to his State. loses his nationality without retaining or acquiring another.567 b. from which he can claim protection and whose laws he is obliged to obey.
f. espionage piracy.570 e. genocide 571 Doctrine of State Responsibility 160 . 9. Liability will attach to the State where its treatment of the alien falls below the international standard of justice or where it is remiss in according him the protection or redress that is warranted by the circumstances. The State can determine in what cases and under what conditions it may admit aliens. treason. Treatment of Aliens A State may be held responsible for an international delinquency directly or indirectly imputable to it which causes injury to the national of another State.571 Flowing from its right to existence and as an attribute of sovereignty. Universality principle Vest jurisdiction in state which has custody of offender of universal crimes.International conventions provide that stateless individuals are to be treated more or less like the subjects of a foreign state. Protective principle Vest jurisdiction in state whose national interests is injured or national security compromised. Passive personality principle Vests jurisdiction in state of offended party. c. no State is under obligation to admit aliens.569 d. The standards to be used are the following: National treatment/ equality of treatment Minimum international standard Aliens are treated in the same manner as However harsh the municipal laws might 569 570 counterfeiting. Conflicts of Jurisdiction A conflict of jurisdiction arises if a dispute can be brought entirely or partly before two or more different courts or tribunals.
572 3. whether he be a national of the requesting state. Extradition (1) Fundamental Principles 1. however. The practice of many states now. P.D. 6. aliens should be protected by certain minimum standards of humane protection. Request through diplomatic representative with: a. Under the attentat clause. Under the principle of specialty. In the absence of special agreement. a. Any person may be extradited. each seeking to impose the government of their own choice on the other. 2. 574 Double Criminality Rule 575 Judicial and diplomatic process of request and surrender. the state of refuge . the murder of the head of state or any member of his family is not to be regarded as a political offense for purposes of extradition. of the state of refuge or of another state. 1069 161 . the prosecution will be allowed if the extraditing state agrees or does not complain. Nevertheless. The act for which the extradition is sought must be punishable in both the requesting and requested states under what is known as the rule of double criminality. Political and religious offenders are generally not subject to extradition.573 5. 572 If he is charged with any other offense committed before his escape. Extradition is based on the consent of the state of asylum as expressed in a treaty or manifested as an act of goodwill. a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the extradition treaty. the offense must have been committed within the territory or against the interests of the demanding state. there must be two or more parties in the state.nationals of the State where they reside be.and not the accused – has a right to object. 4. against a State’s own citizens. Genocide is not a political offense. 573 In order to constitute an offense of a political character. decision of conviction.574 (2) Procedure575 1. is not to extradite their own nationals but to punish them under their own laws in accordance with the nationality principle of criminal jurisdiction.
DFA forwards request to DOJ. c. 5. (Government of the US vs. The foregoing procedure will “best serve the ends of justice” in extradition cases. text of applicable law designating the offense. pertinent papers.577 who is at the same time summoned to answer the petition and to appear at scheduled summary hearings. At his discretion. e. if the presence of a prima facie case is determined. in spite of this study and examination. 577 Prior to the issuance of the warrant. as soon as possible. Individual placed at the disposal of the authorities of requesting state – costs and expenses to be shouldered by requesting state. and (c) the person sought is extraditable. lest the latter be given the opportunity to escape and frustrate the proceedings. No. (b) they show compliance with the Extradition Treaty and Law. DOJ files petition for extradition with RTC. the judge must not inform or notify the potential extraditee of the pendency of the petition. 3. no prima facie finding is possible. d. 7. Decision forwarded to DFA through the DOJ. 148571. Hon.R. the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. No need to notify the person subject of the extradition process when the application is still with the DFA or DOJ. If.579 576 Due process requirement complied at the RTC level upon filing of petition for extradition. Upon receipt of a petition for extradition and its supporting documents.b. a prima facie finding whether (a) they are sufficient in form and substance. recital of facts. criminal charge and warrant of arrest. September 24. the petition may be dismissed at the discretion of the judge. 579 A state may not compel another state to extradite a criminal without going through the legal processes provided in the laws of the former.R. Hearing578 6. No. 2002) 578 provide counsel de officio if necessary. 162 . 8. the judge must study them and make. Purganan and Mark Jimenez G.576 4. Appeal to CA within ten days whose decision shall be final and executory. 2. then the magistrate must immediately issue a warrant for the arrest of the extraditee. On the other hand. G.
Civil and political rights 2. the formal request for extradition is not required to be filed in court – it only needs to be received by the requested state in accordance with PD 1069 580 The surrender of a person by one state to another state where he is wanted for prosecution or. state of origin Calls for the return of the fugitive to the State of origin An undesirable alien may be deported to a state other than his own or the state of origin. and without any punishment being imposed or contemplated either under the laws of the country out of which he is sent. or under those of the country to which he is taken. In the absence of such a treaty. The extradition of a person is required only if there is a treaty between the state of refuge and the state of origin. 581 Removal of an alien out of a country. Rights covered: 1. social and cultural rights582 Extradition is not a criminal proceeding which will call into operation all the rights of an accused provided in the bill of rights For the provisional arrest of an accused to continue. 9. simply because his presence is deemed inconsistent with the public welfare. Universal Declaration of Human Rights (UDHR) The basic international statement of the inalienable and inviolable rights of human beings. if already convicted for punishment. 582 The exercise of these rights and freedoms may be subject to certain limitation. which must be determined by law. International Human Rights Law a. only for the purpose of securing due recognition and respect for the rights of others 163 .(3) Distinguished from Deportation Extradition580 Deportation581 Affected at the request of the state of nation Unilateral act of the local state Based on offenses generally committed in theBased on causes arising in the local state. Economic. It is the first comprehensive international human rights instrument. the local state has every right to grant asylum to the fugitive and to refuse to deliver him back to the latter state even if he is its national.
However. Freedom of movement and the right to travel 11. Freedom from torture or cruel. Rights may not be exercised contrary to the purposes and principles of the UN. as a generally accepted principle of international law. 1989) 164 . which treats only of liberty of abode and the right to one’s country. impartial and public trial 12. Right to privacy 15. Right of recognition everywhere as a person before the law 14. No. 88211. Freedom from slavery 7. against being arbitrarily deprived thereof. it is distinct and separate from the right to travel and enjoys a different protection under the ICCPR. public order and the general welfare in a democratic society. conscience and religion 16. 583 The UDHR and the ICCPR treat the right to freedom of movement and abode within the territory of a state. Freedom of peaceful assembly 18. 15. Right of the people to self-determination 2. Right to an effective remedy 3. Manglapus. and under our constitution. the right to leave a country and the right to enter one’s country as separate and distinct rights. Right to be treated with humanity in cases of deprivation of liberty 9. The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights. G. Right to life 5. Freedom from ex-post facto laws 13. Right to a fair.R. Sept.b. but it is our well -considered view that the right to return may be considered. inhuman or degrading punishment 6. Freedom of thought. Freedom of expression 17. ( Marcos vs. Right to liberty and security of person 8. Freedom from imprisonment for failure to fulfill a contractual obligation 10. is part of the law of the land. Equal rights of men and women in the enjoyment of civil and political rights/non-discrimination on the basis of sex 4. International Covenant on Civil and Political Rights (ICCPR)583 Rights Guaranteed: 1. Freedom of association and of the meeting the just requirements of morality.
Law of the Hague – Establishes the rights and obligations of belligerents in the conduct of military operations. Promotion of child-care facilities. a name and nationality 21. social and cultural rights 2. 7. suffrage and access to public service 22. International Covenant on Economic. Right to equal protection before the law 23.19. International Humanitarian Law (IHL)584 and Neutrality International humanitarian law is a set of rules which seek. 2. Equal rights with men as regards employment 4. special protection to pregnant women as regards type of work 6. Right of a child to protection. pregnancy or maternity leave 5. Prohibition against dismissals due to marriage. right to services in connection with pregnancy. Equal rights and responsibilities as parents. and limits the means of harming the enemy. Social and Cultural Rights (ICESCR) Under the Convention on the Elimination of all forms of Discrimination Against women (CEDAW): 1. Law of Geneva – Designed to safeguard military personnel who are no longer taking part in the fighting and people not actively. Guarantee of economic. to profess and practice their religion and to use their own language c. Equal rights with men as regards education 3. Right of minorities to enjoy their own culture. adequate nutrition during pregnancy and lactation and confinement and the post natal period. to freely decide number of children and access to information and education to be able to exercise their rights. Equal access with men as regards health services. 10. to limit the effects of armed conflict. It protects persons who are not or are no 584 Two (2) branches: 1. Right to marry and found a family 20. Right to enter marriage. Right to participation. for humanitarian reasons. 165 . to freely choose a spouse and to enter into marriage only with free and full consent 8.
this is governed by an important. These are governed by the provisions of human rights law and such measu res of domestic legislation as may be invoked. (3) Wars of National Liberation 585 International humanitarian law is part of international law. International humanitarian law applies to armed conflicts. part of international law set out in the United Nations Charter. 2. 166 . A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four (4) Geneva Conventions as well as in Additional Protocol II. IHL does not apply to situations of viole nce not amounting in intensity to an armed conflict.587 (2) Internal or Non-International Armed Conflict Those restricted to the territory of a single State. 3. including those set out in the four (4) Geneva Conventions and Additional Protocol I. but distinct. The four (4) Geneva Conventions of 1949 are the core of international humanitarian law. It does not regulate whether a State may actually use force. The Geneva Conventions were adopted to limit the human suffering in times of armed conflict. Categories of Armed Conflicts (1) International Armed Conflicts Those in which at least two States are involved.586 It also applies to armed conflict between the government and a rebel or insur gent movement. even if the State of war is not recognized by one of them. All cases of declared war or any other armed conflict which may arise betw een two (2) or more of the Highest contracting parties. They are subject to a wide range of rules. which is the body of rules governing relations between States. or armed groups fighting each other. 586 Art. International law is contained in agreements between States – treaties or conventions – in customary rules. International humanitarian law is also known as the law of war or the law of armed conflict.585 a. id. and in general principles.longer participating in the hostilities and restricts the means and methods of warfare. Geneva Convention of 1949 587 Art. involving either regular armed forces fighting groups of armed dissidents. which consist of State practice considered by them as legally binding.
in peace-keeping missions. and all other individuals or bodies under their authority. Core International Obligations of States in IHL Article 1 of all four (4) Geneva Conventions is a key provision when it comes to a state’s responsibilities under international humanitarian law (IHL). It provides that states are responsible to “respect and ensure respect” for the Conventions in all circumstances. a state must exercise rigorous control over its soldiers. and institutions involved in the fighting or decision-making surrounding an armed conflict.588 These are sometimes called insurgencies. There is considerable difficulty over the meaning of this phrase.589 b. A state is responsible for its soldiers' behaviour when they take part in conflicts abroad. and it may be difficult to apply in practice. must follow the rules of the Geneva Conventions.the international community – to intervene if the parties to the conflict themselves violate the Conventions. In fact. states are responsible to ensure that the rights in the Conventions are respected in all places under its control. for example it has to ensure the protection of prisoners in a prison. This section only deals with the obligations of the primary violating state. other relevant personnel.These are armed conflicts in which people are fighting against colonial domi nationand alien occupation and against racist regimes in the exercise of their right to selfdetermination. The first Protocol of 1977 provides that peoples fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination are to be treated as if they were engaged in an international armed conflict and not a civil war. rebellions or wars of independence. 588 589 [Article 1(4). To "ensure respect" mainly focuses on the obligation of third states that are not directly involved in the conflict . “To respect” means that all state institutions. Protocol I Encyclopedia Britannica 590 the duty to exercise due diligence 167 . A state has a duty590 to do everything it can to ensure that the Conventions are respected by all. In order to fulfill its obligation to respect IHL. which is run by its armed forces abroad. for example.
d. March 2005. 5. they may not be comp elled towork for military services. their speedy repatriation must be accomplished as soon as is practicable. Principles of IHL (1) Treatment of Civilians591 In cases not covered by other international agreements.All their personal belonging except their arms and military papers remain the ir property. army and regimental number and date of birth. They must be interned in a healthful and hygienic place. and the duty of participants to refrain from violating the territory. se rial number. clothing. civilians and combatants remain under the protection and authority of the principles of internation al law derived from established custom. shall be allowed to communicate with their families.After the conclusion of peace. educational and religious articles.c.593 591 592 Customary International Humanitarian Law. 4. 3. and may receive food .They may not be forced to reveal military data except the name.S. shall not be subjected to physical or me ntal torture. 1 168 . Law on Neutrality Law governing a country's abstention from participating in a conflict or aiding a participant of such conflict.592 (2) Prisoners of War Rights and privileges: 1.They must be treated humanely. 2. rank. from the principles of humanity and from the dictates of public conscience. Rules 1-24 Martens clause/Principle of humanity 593 166 U. seizing the possession. or hampering the peaceful commerce of the neutral countries.
the Neutrality Act of 1939. 49. 46. 268. Archipelagic States States constituted wholly by one or more archipelagos and may include oth er islands. is between 1to 1 and 9 to 1.595 The codified law of traditional neutrality is to be found in The Hague Conventions Nos. Baselines Consist of straight lines joining appropriate points of the outermost islands of the archipelago. 169 . id. Lines from which the breadth of the territorial sea.C.599 594 595 22 U. 37 F. 599 Art. b. 272 596 United Nations Convention on the Law of the Law of the Sea (UNCLOS) It defines the rights and obligations of nations in their use of the world’s oceans.597 (1) Straight Archipelagic Baselines An archipelagic State may draw straight archipelagic baselines by joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ration of the water to the area of the land. regardless of their depth or distance from the coast. 597 Art. 441 et seq. V and XIII of 1907. establishing rules for business.For example. including atolls.S.. the contiguous zone an d the exclusive economic zone is measured in order to determine the maritime bo undaryof the coastal State. the environment and the management of marine natural resources.598 (2) Archipelagic Waters These are waters enclosed by the archipelagic baselines. Law of the Sea596 a. 47. UNCLOS 598 Art. id. Supp. Sec. 11.594 was passed by Congress for the purpose of preserving the neutrality of the United States and averting the risks that brought the United States into World War I.
e. 602 part of the sea. c. rivers. extending up to 12 nautical miles from the low-water mark. etc. “in transit betwee n one part of thehigh seas or an exclusive economic zone. 53 in relation with Art. bays . rivers and bays landward of the baseline of the territorial sea. However.” All ships and aircraft are enti tled to theright of archipelagic sea lanes passage. and the high seas on the other. Exclusive Economic Zone An area extending not more than 200 nautical miles beyond the baseline. or in the case of archipelagic states. 8 . waters landward of the baseline other than those of rivers.601 All waters602 landwards from the baseline of the territory. are archipelagic waters. Territorial Sea The belt of the sea located between the coast and internal waters of the coastal state on the one hand. seabed and subsoil – but the right does not affect the right of navigation and overflight of other states. in the case of a rchipelagic states. The coastal state has rights over the economic resource of the sea. Internal Waters These are waters of lakes. from the baselines. and lakes. Art.600 The exercise of the rights of navigation and overflight in the normal mode solely for the purpose of continuous. lakes. Art. 2005. d. expeditious and unobstructed passage in sea lanes and air routes through or over the archipelagic waters and the adjacent territorial sea of the archipelagic state. Sovereignty over these waters is the same in extent as sovereignty over land. Waters on the landward side of the baseline of the territorial sea al so form part of the internal waters of the coastal state. expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. (3) Archipelagic Sea Lanes Passage It is the right of foreign ships and aircraft to have continuous.Waters covered by the straight baseline which are areas which had not previously been considered as such. This has a right of innocent passage. 53. 170 . 600 601 Magallona. id. id. and there is no right of innocent passage.
603 f. id. ITLOS has jurisdiction over all disputes and all applications submitted to it in accordance with UNCLOS and over all matters specifically provided for in any other agreement which confers jurisdiction on the ITLOS. 55 & 57.It gives the coastal State sovereign rights over all economic resources of th e sea. to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas. Germany. ITLOS is composed of 21 independent members elected by the States Parties605 to the UNCLOS from among persons with recognized competence in the field of the law of the sea and representing the principal legal systems of the world. 603 604 Arts. Tribunal of the Law of the Sea604 It is an independent judicial body established by the Third United Nations Convention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention. Continental Shelf (1) Extended Continental Shelf Refers to: a. beyond that limit. Its seat is in Hamburg. to the seabed and subsoil of similar areas adjacent to the coasts of islands. and b. to a depth of 200 meters or. It is part of the continental shelf that lies beyond the 200 nautical miles from the coastal baselines. g. seabed and subsoil in an area extending not more than 200 nautical miles beyond th e baseline from which the territorial sea is measured. International Tribunal for the Law of the Sea (ITLOS) 605 States which have consented to be bound by the Convention and for which the Convention is in force 171 . the seabed and the subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea. It was established after Ambassador Arvido Pardo Malta addressed the General Assemblyof the United Nations and called for “an effective inter national regime overthe seabed and ocean floor beyond a clearly defined national jurisdiction.
which means that the Convention becomes enforceable by the signatory's mere accession and no further implementing legislation is required. Convention priority: Any person who has filed a trademark application in one of the signatory countries possesses a right to claim that filing date for priority purposes for trademark applications filed within six months in other signatory countries. Also.12. 2. These rights include the protection of well-known marks. 3. as long as these agreements do not contravene the regulations of the Paris Convention. if the national application on which the international registration is based is refused. The Paris Convention allows signatories to conclude special agreements in the field of protection of intellectual property. the Assembly (which comprises all member nations) and the Executive Committee. The "Paris Convention for the Protection of Industrial Property"606 is the oldest major international treaty concerning the protection of intellectual property. The Paris Convention ensures the nationals of any signatory country certain protection of their rights in all other signatory countries. For instance. It was adopted in 1883 and has been revised several times. National treatment: This means that nationals of any signatory country enjoy in all other signatory countries the advantages that each national law grants to citizens within their own nations. the TRIPS 606 Paris Convention 172 . protection of trade names and claims deriving from unfair competition. Creation of a legal entity recognized under international law comprised of the following administrative bodies: the World Intellectual Property Organization (WIPO). the international registration may be converted into national applications without losing the original filing date or priority date. The Paris Convention provides for the following: 1. The most important special agreements in relation to the protection of trademarks are: the Madrid Agreement. Madrid Protocol and the Paris Convention for the Protection of Industrial Property The "Protocol relating to the Madrid Agreement" ("Madrid Protocol") was adopted in 1989 and entered into force on December 1. 1995. withdrawn or cancelled. In some countries the Paris Convention is self-executing. the Protocol relating to the Madrid Agreement. The Madrid Protocol makes the Madrid System more flexible. it allows an application for international registration to be based upon a pending trademark application filed in the applicant's country of origin.
Principles of International Environmental Law. 2003 The Stockholm Declaration. including the law of the European Union. was adopted on June 16. the Nice Agreement. International economic law: Section A 607 608 Philippe Sands. 1972 in Stockholm.607 a.Agreement. The sovereign right to exploit their own resources pursuant to their own environmental policies. including both the international law of the World Trade Organization and GATT and domestic trade laws. It contains 26 principles and 109 recommendations regarding the preservation and enhancement of the right to a healthy environment. The responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. and 2. the Vienna Agreement. the Trademark Law Treaty. and the Madrid Agreement on Indications of Origin 13. procedural and institutional rules which have as their primary objective the protection of the environment. It is often defined broadly to include a vast array of topics ranging from public international law of trade to private international law of trade to certain aspects of international commercial law and the law of international finance and investment. International economic law International economic law regulates the international economic order or economic relations among nations. However. the term ‘international economic law’ encompasses a large number of areas. 14. 173 . Sweden. NAFTA and Mercosur. International Environment Law It is the branch of public international law comprising "those substantive. or the Declaration of the United Nations Conference on the Human Environment." the term environment being understood as encompassing "both the features and the products of the natural world and those of human civilization. The International Economic Law Interests Group of the American Society of International Law includes the following non-exhaustive list of topics within the term ‘international economic law’: (1) International Trade Law. Principle 21 of Stockholm Declaration608 This declares that States have 1. (2) International Economic Integration Law.
2013 174 . International economic law is based on the traditional principles of international law such as: _ pacta sunt servanda _ freedom _ sovereign equality _ reciprocity _ economic sovereignty. including private transactional law. It is also based on modern and evolving principles such as: _ the duty to co-operate _ permanent sovereignty over natural resources _ preferential treatment for developing countries in general and the least-developed countries in particular. including international choice of law. environmental regulation and product safety regulation. regulatory law. enforcement of judgments and the law of international commerce. (5) International Financial Law. and (8) International intellectual property law. choice of forum. (7) International tax law. (4) International Business Regulation. (6) The role of law in development. including the law of the International Monetary Fund and World Bank. the law of foreign direct investment and international monetary law. including antitrust or competition law.(3) Private International Law. Include: Pertinent Supreme Court decisions promulgated up to January 31.
. and forthwith direct its representative to investigate the case and immediately report the matter to the Commission.Reference Omnibus Election Code Section 233. upon prior authority of the Commission. notwithstanding the fact that not all the election returns have been received by it. the board of canvassers shall. The board of canvassers. or if said returns have been lost or destroyed.In case its copy of the election returns is missing. 175 . may terminate the canvass and proclaim the candidates elected on the basis of the available election returns if the missing election returns will not affect the results of the election. When the election returns are delayed. may use any of the authentic copies of said election returns or a certified copy of said election returns issued by the Commission. lost or destroyed. obtain such missing election returns from the board of election inspectors concerned. the board of canvassers. by messenger or otherwise.
If the other copies of the returns are likewise tampered with. for the same board to effect the correction: Provided. after satisfying itself that the identity and integrity of the ballot box have not been violated. the board of canvassers shall require the board of election inspectors concerned to complete the necessary data in the election returns and affix therein their initials: Provided. That if the votes omitted in the returns cannot be ascertained by other means except by recounting the ballots. order the opening of the ballot box and. Section 236. likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass. or otherwise not authentic. and in either case the difference affects the results of the election. the board of canvassers or any candidate affected shall bring the matter to the attention of the Commission. The right of a candidate to avail of this provision shall not be lost or affected by the fact that an election protest is subsequently filed by any of the candidates. and. the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. altered or falsified after they have left the hands of the board of election inspectors. That in case of the omission in the election returns of the name of any candidate and/or his corresponding votes. also after satisfying itself that the integrity of the ballots therein has been duly preserved. Section 235. . order the board of election inspectors to count the votes for the candidate whose votes have been omitted with notice thereof to all candidates for the position involved and thereafter complete the returns. falsified. if necessary. The Commission shall then. or prepared by persons other than the member of the board of election inspectors. . the Commission. Discrepancies in election returns. shall order the board of election inspectors to open the ballot box.If it should clearly appear that some requisites in form or data had been omitted in the election returns. intimidation. upon motion of the board of canvassers or any candidate 176 . or prepared by persons other than the members of the board of election inspectors. not authentic. further. the board of canvassers shall call for all the members of the board of election inspectors concerned by the most expeditious means.Section 234.In case it appears to the board of canvassers that there exists discrepancies in the other authentic copies of the election returns from a polling place or discrepancies in the votes of any candidate in words and figures in the same return. the Commission. altered. or were prepared by the board of election inspectors under duress. after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated. Material defects in the election returns. force. When election returns appear to be tampered with or falsified. the board of canvassers shall use the other copies of said election returns and. force.If the election returns submitted to the board of canvassers appear to be tampered with. prepared under duress. intimidation. .
the following expressions shall have the meanings hereunder assigned to them: (a) The “head of the mission” is the person charged by t he sending State with the duty of acting in that capacity. irrespective of ownership. (g) The “members of the service staff” are the members of the staff of the mission in the domestic service of the mission. Article 2 177 . 1961) Article 1 For the purpose of the present Convention. (f) The “members of the administrative and technical staff” are the members of the staff of the mission employed in the administrative and technical service of the mission. shall proceed summarily to determine whether the integrity of the ballot box had been preserved. and once satisfied thereof shall order the opening of the ballot box to recount the votes cast in the polling place solely for the purpose of determining the true result of the count of votes of the candidates concerned. Diplomatic and Consular Law Vienna Convention on Diplomatic Relations (April 18. (i) The “premises of the mission” are the buildings or parts of buildings and the land ancillary thereto. (d) The “members of the diplomatic staff” are the members of the staff of the mission having diplomatic rank. (b) The “members of the mission” are the head of the mission and the members of the staff of the mission. (c) The “members of the staff of the mission” ar e the members of the diplomatic staff. used for the purposes of the mission including the residence of the head of the mission. (e) A “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission. (h) A “private servant” is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State. of the administrative and technical staff and of the service staff of the mission.affected and after due notice to all candidates concerned.
takes place by mutual consent. accredit a head of mission or assign any member of the diplomatic staff. (d) Ascertaining by all lawful means conditions and developments in the receiving State. to more than one State. 2. as the case may be. A head of mission or any member of the diplomatic staff of the mission may act as representative of the sending State to any international organization. cultural and scientific relations. and reporting thereon to the Government of the sending State. The receiving State is not obliged to give reasons to the sending State for a refusal of agrément. If the sending State accredits a head of mission to one or more other States it may establish a diplomatic mission headed by a chargé d’affaires ad interim in each State where the head of mission has not his permanent seat. unless there is express objection by any of the receiving States. 2. The sending State must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State. and developing their economic. Article 4 1. (c) Negotiating with the Government of the receiving State.The establishment of diplomatic relations between diplomatic missions. after it has given due notification to the receiving States concerned. in: (a) Representing the sending State in the receiving State. 3. unless objection is offered by the receiving State. inter alia. (e) Promoting friendly relations between the sending State and the receiving State. 2. Nothing in the present Convention shall be construed performance of consular functions by a diplomatic mission. 178 as preventing the . (b) Protecting in the receiving State the interests of the sending State and of its nationals. The sending State may. and of permanent 1. within the limits permitted by international law. Article 5 1. The functions of a diplomatic mission consist. Article 6 Two or more States may accredit the same person as head of mission to another State. Article 3 States.
or such other ministry as may be agreed. as appropriate. where appropriate. (b) The arrival and final departure of a person belonging to the family of a member of the mission and. the sending State shall. Article 8 1. their arrival and their final departure or the termination of their functions with the mission. 3. notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. 179 . either recall the person concerned or terminate his functions with the mission. Article 9 1. except with the consent of that State which may be withdrawn at any time. the fact that a person becomes or ceases to be a member of the family of a member of the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State. 9 and 11. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article. The receiving State may at any time and without having to explain its decision. The Ministry for Foreign Affairs of the receiving State. the receiving State may refuse to recognize the person concerned as a member of the mission. In any such case. Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State. In the case of military. Article 10 1. 8.Article 7 Subject to the provisions of articles 5. shall be notified of: (a) The appointment of members of the mission. the sending State may freely appoint the members of the staff of the mission. the receiving State may require their names to be submitted beforehand. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State. 2. naval or air attachés. 2. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State. for its approval.
(b) That of envoys. prior notification of arrival and final departure shall also be given. without the prior express consent of the receiving State. refuse to accept officials of a particular category. (c) That of chargés d’affaires accredited to Ministers for Foreign Affairs. 2. ministers and internuncios accredited to Heads of State. the fact that they are leaving the employ of such persons. 180 . Article 12 The sending State may not. Where possible. having regard to circumstances and conditions in the receiving State and to the needs of the particular mission. Article 11 1. and other heads of mission of equivalent rank. Article 14 1. The order of presentation of credentials or of a true copy thereof will be determined by the date and time of the arrival of the head of the mission. the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal. Article 13 1. namely: (a) That of ambassadors or nuncios accredited to Heads of State. In the absence of specific agreement as to the size of the mission. The receiving State may equally. or such other ministry as may be agreed. Heads of mission are divided into three classes. within similar bounds and on a nondiscriminatory basis.(c) The arrival and final departure of private servants in the employ of persons referred to in subparagraph (a) of this paragraph and. in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner. 2. where appropriate. 2. The head of the mission is considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State. (d) The engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities. establish offices forming part of the mission in localities other than those in which the mission itself is established.
by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed. in case he is unable to do so. 2. or if the head of the mission is unable to perform his functions a chargé d’affaires ad interim shall act prov isionally as head of the mission. be designated by the sending State to be in charge of the current administrative affairs of the mission. a member of the administrative and technical staff may. Except as concerns precedence and etiquette. Heads of mission shall take precedence in their respective classes in the order of the date and time of taking up their functions in accordance with article 13. The name of the chargé d’affaires ad interim shall be notified. Article 18 The procedure to be observed in each State for the reception of heads of mission shall be uniform in respect of each class. Article 19 1. there shall be no differentiation between heads of mission by reason of their class. Article 20 181 . 3. 2. with the consent of the receiving State. Article 15 The class to which the heads of their missions are to be assigned shall be agreed between States. Alterations in the credentials of a head of mission not involving any change of class shall not affect his precedence. either by the head of the mission or. This article is without prejudice to any practice accepted by the receiving State regarding the precedence of the representative of the Holy See. In cases where no member of the diplomatic staff of the mission is present in the receiving State. Article 17 The precedence of the members of the diplomatic staff of the mission shall be notified by the head of the mission to the Ministry for Foreign Affairs or such other ministry as may be agreed.2. If the post of head of the mission is vacant. Article 16 1.
assist missions in obtaining suitable Article 22 1. other than such as represent payment for specific services rendered. requisition. Article 25 The receiving State shall accord full facilities for the performance of the functions of the mission. The sending State and the head of the mission shall be exempt from all national. where necessary. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 2. and on his means of transport. except with the consent of the head of the mission. The agents of the receiving State may not enter them. by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way. attachment or execution. Article 21 1. The exemption from taxation referred to in this article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission. Article 23 1. regional or municipal dues and taxes in respect of the premises of the mission. in accordance with its laws. 2. It shall also. including the residence of the head of the mission. Article 24 The archives and documents of the mission shall be inviolable at any time and wherever they maybe. 2. their furnishings and other property thereon and the means of transport of the mission shall be immune from search.The mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission. 182 . 3. The receiving State shall either facilitate the acquisition on its territory. The premises of the mission shall be inviolable. The premises of the mission. accommodation for their members. whether owned or leased.
A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. 4. 2.Article 26 Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security. However. The sending State or the mission may designate diplomatic couriers ad hoc. including diplomatic couriers and messages in code or cipher. the mission may employ all appropriate means. Article 27 1. Article 29 183 . In such cases the provisions of paragraph 5 of this article shall also apply. who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag. wherever situated. 5. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State. the mission may install and use a wireless transmitter only with the consent of the receiving State. shall be protected by the receiving State in the performance of his functions. 7. The official correspondence of the mission shall be inviolable. The diplomatic bag shall not be opened or detained. the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory. Official correspondence means all correspondence relating to the mission and its functions. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft. Article 28 The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes. He shall enjoy person inviolability and shall not be liable to any form of arrest or detention. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use. except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge. 6. 3. The diplomatic courier. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier.
freedom or dignity. administrator. shall likewise enjoy inviolability. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. 4. Waiver must always be express. (c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. 2. A diplomatic agent is not obliged to give evidence as a witness. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. Article 30 1.The person of a diplomatic agent shall be inviolable. He shall also enjoy immunity from its civil and administrative jurisdiction. Article 32 1. Article 31 1. He shall not be liable to any form of arrest or detention. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State. 3. and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. (b) An action relating to succession in which the diplomatic agent is involved as executor. his property. except in the case of: (a) A real action relating to private immovable property situated in the territory of the receiving State. correspondence and. 2. heir or legatee as a private person and not on behalf of the sending State. (b) and (c) of paragraph 1 of this article. unless he holds it on behalf of the sending State for the purposes of the mission. 3. 2. except as provided in paragraph 3 of article 31. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person. His papers. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under article 37 shall preclude him from invoking 184 . No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a). A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
succession or inheritance duties levied by the receiving State. Article 34 A diplomatic agent shall be exempt from all dues and taxes. (b) Dues and taxes on private immovable property situated in the territory of the receiving State. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement. unless he holds it on behalf of the sending State for the purposes of the mission. 4. except: (a) Indirect taxes of a kind which are normally incorporated in the price of goods or services. 5. The exemption provided for in paragraphs 1 and 2 of this article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State. The exemption provided for in paragraph 1 of this article shall also apply to private servants who are in the sole employ of a diplomatic agent. national. (b) That they are covered by the social security provisions which may be in force in the sending State or a third State. personal or real. 3. 4. (c) Estate.immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim. 2. 185 . A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers. a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State. for which a separate waiver shall be necessary. regional or municipal. The provisions of this article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future. Article 33 1. subject to the provisions of paragraph 4 of article 39. on condition: (a) and That they are not nationals of or permanently resident in the receiving State. Subject to the provisions of paragraph 3 of this article.
if they are not nationals of the receiving State. enjoy the privileges and immunities specified in articles 29 to 36. including articles intended for his establishment. mortgage dues and stamp duty. and related charges other than charges for storage. if they are not nationals of or permanently resident in the receiving State. in respect of articles imported at the time of first installation. Members of the administrative and technical staff of the mission. 2. or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. permit entry of and grant exemption from all customs duties. except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties. paragraph 1. Article 36 1. together with members of their families forming part of their respective households. on (a) Articles for the official use of the mission. from all public service of any kind whatsoever. 2. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative. (f) Registration. The receiving State shall. The personal baggage of a diplomatic agent shall be exempt from inspection. in accordance with such laws and regulations as it may adopt.(d) Dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State. The members of the family of a diplomatic agent forming part of his household shall. cartage and similar services. with respect to immovable property. shall. taxes. 186 . enjoy the privileges and immunities specified in articles 29 to 35. Article 37 1. (b) Articles for the personal use of a diplomatic agent or members of his family forming part of his household. court or record fees. unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this article. (e) Charges levied for specific services rendered. subject to the provisions of article 23. military contributions and billeting. Article 35 The receiving State shall exempt diplomatic agents from all personal services. They shall also enjoy the privileges specified in article 36. and from military obligations such as those connected with requisitioning.
if already in its territory. However. the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. even in case of armed conflict. with respect to acts performed by such a person in the exercise of his functions as a member of the mission. Private servants of members of the mission shall. 2. or on expiry of a reasonable period in which to do so. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or.3. immunity shall continue to subsist. in respect of official acts performed in the exercise of his functions. Except insofar as additional privileges and immunities may be granted by the receiving State. 2. 3. but shall subsist until that time. from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. In other respects. they may enjoy privileges and immunities only to the extent admitted by the receiving State. 4. exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in article 33. if they are not nationals of or permanently resident in the receiving State. and inviolability. However. Article 38 1. such privileges and immunities shall normally cease at the moment when he leaves the country. the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties. However. be exempt from dues and taxes on the emoluments they receive by reason of their employment. In case of the death of a member of the mission. 187 . a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction. When the functions of a person enjoying privileges and immunities have come to an end. Article 39 1. the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
If a diplomatic agent passes through or is in the territory of a third State. Estate. The obligations of third States under paragraphs 1. Article 40 1. it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.4. whose presence in the territory of the third State is due to force majeure. through their territories 3. with the exception of any property acquired in the country the export of which was prohibited at the time of his death. which has granted him a passport visa if such visa was necessary. who have been granted a passport visa if such visa was necessary. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent. 4. 2. or travelling separately to join him or to return to their country. They shall accord to diplomatic couriers. and diplomatic bags in transit. 188 . the receiving State shall permit the withdrawal of the movable property of the deceased. third States shall not hinder the passage of members of the administrative and technical or service staff of a mission. succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission. including messages in code or cipher. Article 41 1. 2 and 3 of this article shall also apply to the persons mentioned respectively in those paragraphs. They also have a duty not to interfere in the internal affairs of that State. the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. while proceeding to take up or to return to his post. Third States shall accord to official correspondence and other official communications in transit. the same freedom and protection as is accorded by the receiving State. or when returning to his own country. and to official communications and diplomatic bags. the same inviolability and protection as the receiving State is bound to accord. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household. Without prejudice to their privileges and immunities. and of members of their families. In circumstances similar to those specified in paragraph 1 of this article.
to a third State acceptable to the receiving State. together with its property and archives. or if a mission is permanently or temporarily recalled: (a) The receiving State must. other than nationals of the receiving State. Article 44 The receiving State must. Article 45 If diplomatic relations are broken off between two States. in particular. in case of need. to leave at the earliest possible moment. even in case of armed conflict. Article 42 A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity. Article 43 The function of a diplomatic agent comes to an end. even in case of armed conflict.2. it refuses to recognize the diplomatic agent as a member of the mission. It must. (c) The sending State may entrust the protection of its interests and those of its nationals to a third 189 . The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State. inter alia: (a) On notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end. place at their disposal the necessary means of transport for themselves and their property. and members of the families of such persons irrespective of their nationality. together with its property and archives. respect and protect the premises of the mission. (b) On notification by the receiving State to the sending State that. (b) The sending State may entrust the custody of the premises of the mission. grant facilities in order to enable persons enjoying privileges and immunities. 3. All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed. in accordance with paragraph 2 of article 9.
Article 46 A sending State may with the prior consent of a receiving State. (b) Where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention. until 31 March 1962. Article 48 The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies Parties to the Statute of the International Court of Justice. Article 51 of 190 . and at the request of a third State not represented in the receiving State. 2. In the application of the provisions of the present Convention. The instruments of accession shall be deposited with the Secretary.General of the United Nations. undertake the temporary protection of the interests of the third State and of its nationals. The instruments ratification shall be deposited with the Secretary-General of the United Nations. the receiving State shall not discriminate as between States.State acceptable to the receiving State. and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention. However. Article 47 1. as follows: until 31 October 1961 at the Federal Ministry for Foreign Affairs of Austria and subsequently. Article 50 The present Convention shall remain open for accession by any State belonging to any of the four categories mentioned in article 48. at the United Nations Headquarters in New York. discrimination shall not be regarded as taking place: (a) Where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State. Article 49 The present Convention is subject to ratification.
(b) Of the date on which the present Convention will enter into force. consulate. 1963) Article 1 Definitions 1 . The present Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations. consular agency. entrusted in that capacity with the exercise of consular functions. English. Article 52 The Secretary-General of the United Nations shall inform all States belonging to any of the four categories mentioned in article 48: (a) Of signatures to the present Convention and of the deposit of instruments of ratification or accession. French.1. Article 53 The original of the present Convention. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession. shall be deposited with the Secretary-General of the United Nations. 191 . (c) “head of consular post” means the person charged with the d uty of acting in that capacity. who shall send certified copies thereof to all States belonging to any of the four categories mentioned in article 48. (d ) “consular officer” means any person. the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession. in accordance with articles 48. in accordance with article 51. Vienna Convention on Consular Relations (April 24. vice-consulate or (b ) “consular district” means the area assigned to a consular post for the exercise of consular functions. of which the Chinese. Russian and Spanish texts are equally authentic.For the purposes of the present Convention. 49 and 50. 2. including the head of a consular post. the follow in g expressions shall have the meanings Here under assigned to them: (a ) “consular post” means any consulate-general.
(f) “member of the service staff” means any person employed in the domestic service of a consular post. correspondence. films. (g ) “members of the consular post” means consular officers. 2 . used exclusively for the purposes of the consular post. 2. irrespective of ownership. Article 3 192 . other than the head of a consular post.Consular officers are of two categories. 3 . books. consent to the establishment of consular relations. unless otherwise stated. (i) “member of the private staff” means a person who is employed exclusively in the private service of a member of the consular post. documents. The consent given to the establishment of diplomatic relations between two States implies. together with the ciphers and codes.(e) “consular employee” means any person employed in the administrative or technical service of a consular post. tapes and registers of the consular post. the card-indexes and any article of furniture intended for their protection or safe keeping. namely career consular officers and honorary consular officers.The establishment of consular relations between States takes place by mutual consent. (h ) “members of the consular staff” means consular officers. consular employees and members of the service staff. Article 2 1 . (k) “consular archives” includes all the papers. 3 . The provisions of Chapter II of the present Convention apply to consular posts headed by career consular officers.The severance of diplomatic relations shall not ipso facto involve the s severance of consular relations. the provisions of Chapter III govern consular posts headed by honorary consular officers. consular employees and members of the service staff. (j) “consular premises” means the buildings or parts of buildings and the land ancillary thereto.The particular status of members of the consular posts who are nationals or permanent residents of the receiving State is governed by article 71 of the present Convention.
within the limits permitted by international law. cultural and scientific relations between the sending g State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention.The seat of the consular post. its classification or the consular district may be made by the sending State only with the consent of the receiving State. economic.The consent of the receiving State shall also be required if a consulate-general or a consulate desires to open a vice-consulate or a consular agency in a locality o other than that in which it is itself established. Article 4 1 . 2 . economic. (d ) issuing passports and travel documents to nationals of the sending State. (c) ascertaining by all lawful means conditions and developments in the commercial. cultural and scientific life of the receiving State. 5 .The prior express consent of the receiving State shall also be required for the opening of an office forming part of an existing consular post elsewhere ere than at the seat thereof. both individuals and bodies corporate.Consular functions are exercised by consular posts.A consular post may be established in the territory of the receiving State only with that State’s consent. its classification and the consular district shall be established by the sending State and shall be subject to the approval of the receiving State. 4 . (b ) furthering the development of commercial.Subsequent changes in the seat of the consular post. reporting thereon to the Government of the sending State and giving information to persons interested. 193 . They are also exercised by diplomatic missions in accordance with the provisions of the present Convention. and visas or appropriate documents to persons wishing to travel to the sending State. 3 . Article 5 Consular functions consist in: (a ) protecting in the receiving State the interests of the sending State and of its nationals.
in any other manner compatible with the laws and regulations of the receiving State. in accordance with the laws and regulations of the receiving State. examining and stamping the ship’s papers . the officers and the seamen insofar as this may be authorized by the laws and regulations of the sending State. and settling disputes of any kind between the master. of the sending State. and performing certain functions of an administrative nature. (k) exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State.(e) helping and assisting nationals. in accordance with the laws and regulations of the receiving State. (l) extending assistance to vessels and aircraft mentioned in subparagraph (k) of this article. (m ) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no o objection is taken by the receiving State or which are referred to 194 . provided that there is nothing contrary thereto in the laws and regulations of the receiving State. and to their crews. conducting investigations into any incidents which occurred during the voyage. for the purpose of obtaining. (j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with in international agreements in force or. and in respect of their crews . both individuals and bodies corporate. and of aircraft registered in that State. (i) subject to the practices and procedures obtaining in the receiving State. provisional measures for the preservation of the rights and interests of these nationals. because of absence or any other reason. (g ) safeguarding the interests of nationals. particularly where any guardianship or trusteeship is required with respect to such persons. taking statements regarding the voyage of a vessel. in the absence of such international agreements. without prejudice to the powers of the authorities of the receiving State. of the sending States in cases of succession mortis causa in the territory of the receiving State. such nationals are unable at the proper time to assume the defence of their rights and interests. (f) acting as notary and civil registrar and in capacities of a similar kind. and. representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State. (h ) safeguarding. both individuals and bodies corporate. the interests of minors and other persons lacking full capacity who are nationals of the sending State. where. within the limits imposed by the laws and regulations of the receiving State.
Article 10 1 . Article 8 Upon appropriate notification to the receiving State. after notifying the States concerned.Subject to the provisions of the present Convention . regulations an d usages of the sending State and of the receiving State respectively. exercise consular functions in the receiving State on behalf of a third State. 2 . in special circumstances. Article 9 1 . (c) vice-consuls. entrust a consular post established in a particular State with the exercise of consular functions in another State. with the consent of the receiving State. 195 .Paragraph 1 of this article in no way restricts the right of any of the Contracting Parties to fix the designation of consular officers other than the heads of consular posts. Article 7 The sending State may. unless there is express objection by one of the States concerned. namely (a ) consuls-general. (d ) consular agents.Heads of consular posts are appointed by the sending State and are admitted to the exercise of their functions by the receiving State.in the international agreements in force between the sending State and the receiving State. exercise his functions outside his consular district. (b ) consuls. a consular post of the sending State may. unless the receiving State objects. Article 6 A consular officer may. the formalities for the appointment and for the admission of the head o f a consular post are determined by the laws. 2 .Heads of consular posts are divided into four classes.
the head of a consular post shall not enter upon his duties until he has received an exequatur. Article 13 Pending delivery of the exequatur. the consular district and the seat of the consular post. the receiving State shall immediately notify the competent authorities of the consular district. in the form of a commission or similar instrument.A State which refused to grant an exequatur is not obliged to give to the sending State reasons for such refusal.Subject to the provisions of articles 13 and 15. Article 14 As soon as the head of a consular post is admitted even provisionally to the exercise of his functions.The sending State shall transmit the commission or similar instrument through the diplomatic or other appropriate channel to the Government of the State in whose territory the head of a consular post is to exercise his functions. the provisions o f the present Convention shall apply. It shall also ensure that the necessary measures are taken to enable the head of a consular post to carry out the duties of his office and to have the benefit of the provisions of the present Convention.Article 11 1 . 3 . 2 . Article 15 1 .If the head of a consular post is unable to carry out his functions or the position of head of consular post is vacant. the head of a consular post may be admitted on a provisional basis to the exercise of his functions. his full name. made out for each appointment. send to the receiving State a notification containing the particulars required by paragraph 1 of this article.If the receiving State agrees.The head of a consular post shall be provided by the sending State with a document. instead of a commission or similar instrument. 196 . 2 . In that case. Article 12 1 . certifying his capacity and showing. an acting head of post may act provisionally as head of the consular post. whatever the form of this authorization. as a general rule. 3 .The head of a consular post is admitted to the exercise of his functions by an authorization from the receiving State termed an exequatur. his category and class. the sending State may.
3 .If. by the head of the consular post.The order of precedence as between two or more head s of consular posts who obtained the exequatur or provisional admission on the same date shall be determined according to the dates on which their commissions or similar instruments or the notifications referred to in paragraph 3 of article 11 were presented to the receiving State.2 . or. he shall. however. to the Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry. if he is unable to do so. 4 . privilege or immunity which the head of the consular post enjoys only subject to conditions not fulfilled by the acting head of post.Heads of consular posts shall rank in each class according to the date of the gran t of the exequatur. this precedence shall be maintained after the granting of the exequatur.Acting heads of posts shall rank after all heads of consular posts and. The receiving State may make the admission as actin g head of post of a person who is neither a diplomatic agent nor a consular officer of the sending State in the receiving State conditional on its consent. a member of the diplomatic staff of the diplomatic mission of the sending State in the receiving State is designated by the sending State as an acting head of post. 197 . the provisions of the present Convention shall apply to him on the same basis as to the head of the consular post concerned. Article 16 1 . h is precedence shall be determined according to the date of the provisional admission. The receiving State shall not.When. While he is in charge of the post.The competent authorities of the receiving State shall afford assistance and protection to the acting head of post. 2 . by any competent authority of the s ending State. the head of a consular post before obtaining the exequatur is admitted to the exercise of his functions provisionally. continue to enjoy diplomatic privileges and immunities. this notification shall be given in advance. in the circumstances referred to in paragraph 1 of this article. As a general rule. if that State has no such mission in the receiving State. as between themselves. 4 . they shall rank according to the dates on which they assumed their functions as acting heads of posts as indicated in the notifications given under paragraph 2 of article 15 . 3 . however.The full name of the acting head of post shall be notified either by the diplomatic mission of the sending State or. be obliged to grant to an acting head of post any facility. if the receiving State does not object thereto.
with the consent of the receiving State. The performance of such acts by a consular officer shall not confer upon him any right to claim diplomatic privileges and immunities. other than the head of a consular post. Article 17 1 . act as representative of the sending State to any intergovernmental organization. request the receiving State to grant an exequatur to a consular officer other than the head of a consular post. shall be notified by the sending State to the receiving State in sufficient time for the receiving State.The receiving State may. Article 19 1 .In a State where the sending State has no diplomatic mission and is not represented by a diplomatic mission of a third State. 4 . Article 18 Two or more States may. Article 20 198 . 3 . he shall not be entitled to any greater immunity from jurisdiction than that to which a consular officer is entitled under the present Convention. and without affecting his consular status. 22 and 23. g rant an exequatur to a consular officer other than the head of a consular post. if required by its laws and regulations.The full name. a consular officer may. appoint the same person as a consular officer in that State. 2 . be authorized to perform diplomatic acts.Heads of consular posts s hall have precedence over consular officers not having that status. after notification addressed to the receiving State.Honorary consular officers who are heads of consular posts shall rank in each class after career heads of consular posts. When so acting. 2 . the sending State may freely appoint the members of the consular staff. 6 . in the order and according to the rules laid down in the foregoing paragraphs . category an d class of all consular officers.The sending State may. if it so wishes.Subject to the provisions of articles 20. he shall be entitled to enjoy any privileges and immunities accorded to such a representative by customary international law or by international agreements. in respect of the performance by him of any consular function.A consular officer may.5 . with the consent of the receiving State. if required by its laws and regulations. to exercise its rights under paragraph 3 of article 23. however.
in principle. the sending State shall. to the Ministry for Foreign n Affairs of the receiving State or to the authority designated by that Ministry. Article 21 The order of precedence as between the consular officers of a consular post an d any change thereof shall be notified by the diplomatic mission of the sending State or. if already in the receiving State. In any such case.A person appointed as a member of a consular post may be declared unacceptable before arriving in the territory of the receiving State or. the receiving State may require that the size of the staff be kept within limits considered by it to be reasonable and normal.Consular officers may not be appointed from among persons having the n nationality of the receiving State except with the express consent of that State which may be withdrawn at any time. 2 . the sending State shall withdraw his appointment. 4 . as the case may be. either withdraw the exequatur from the person concerned or cease to consider him as a member of the consular staff. Article 24 1 . by the head of the consular post. the receiving State is not obliged to give to the sending State reasons for its decision.In the cases mentioned in paragraphs 1 and 3 of this article. Article 22 1 .If the sending State refuses or fails within a reasonable time to carry out its obligations under paragraph 1 of this article. before entering on his duties with the consular post. either recall the person concerned or terminate his functions with the consular post. Article 23 1 .The receiving State may at any time notify the sending State that a consular officer is persona non grata or that any other member of the e consular staff is not acceptable. as the case may be.The Ministry for Foreign Affairs of the receiving State or the authority designated by that Ministry shall be notified of: 199 . having regard to circumstances and conditions in the consular district and to the needs of the particular consular post. 2 . the receiving State may.In the absence of an express agreement as to the size of the consular staff.The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State. if that State has no such mission n in the receiving State. have the nationality of the sending State.Consular officers should. In that event. 3 . 3 .
(b ) the arrival and final departure of a person belonging to the family of a member of a consular post forming part of his household and. In particular. (c) the arrival and final departure of members of the private staff and. where appropriate. Article 26 The receiving State shall. and to members of their families forming part of their households irrespective of nationality. in case of need. their arrival after appointment to the consular post. the fact that a person becomes or ceases to be such a member of the family. 200 . even in case of armed conflict. place at their disposal the necessary means of transport for themselves and their property other than property acquired in the receiving State the export of which is prohibited at the time of departure. 2 . their final departure or the termination of their functions and any other changes affecting their status that may occur in the course of their service with the consular post. (c) on notification by the receiving State to the sending State that the receiving State has ceased to consider him as a member of the consular staff. (d ) the engagement and discharge of persons resident in the receiving State as members of a consular post or as members of the private staff entitled to privileges and immunities. inter alia: (a ) on notification by the sending State to the receiving State that his functions have come to an end. where appropriate.(a ) the appointment of members of a consular post.When possible. (b ) on withdrawal of the exequatur. prior notification of arrival and final departure shall also be given. other than nationals of the receiving State. grant to members of the consular post and members of the private staff. it shall. the necessary time and facilities to enable them to prepare their departure and to leave at the earliest possible moment after the termination of the functions of the members concerned. the termination of their service as such. Article 25 The functions of a member of a consular post shall come to an end.
together with the property contained therein and the consular archives. (b ) the sending State may entrust the custody of the consular premises. the provisions of subparagraphs (b) and (c) of paragraph 1 of this article sh all apply. although not represented in the receiving State by a diplomatic mission. on the residence of the head of the consular post and on his means of trans port when used on official business. respect and protect the consular premises. regulations and usages of the receiving State. that consular post may be entrusted with the custody of the premises of the consular post which has been closed. (c) the sending State may entrust the protection of its interests and those of its nationals to a third 2 . Article 28 The receiving State shall accord full facilities for the performance of the functions of the consular post. the provisions of subparagraph (a) of paragraph 1 of this article shall apply. In addition.In the event of the severance of consular relations between two States: (a ) the receiving State shall.Article 27 1 . Article 30 201 . or (b ) if the sending State has no diplomatic mission and no other consular post in the receiving State. even in case of armed conflict.In the event of the temporary or permanent closure of a consular post. to a third State acceptable to the receiving State.In the exercise of the right accorded by this article regard shall be had to the laws. 2 . together with the property of the consular post and the consular archives.The national flag of the sending State may be flow n and its coat-of-arms displayed on the building occupied by the consular post and at the entrance door thereof. with the consent of the receiving State. 3 . together with the property contained therein and the consular archives. has another consular post in the territory of that State. Article 29 1 . with the exercise of consular functions in the district of that consular post.The sending State shall have the right to the u se of its national flag and coatof-arms in the receiving State in accordance with the provisions of this article. (a ) if the s ending State. and.
in accordance with its laws and regulations. adequate and effective compensation shall be paid to the sending State.Subject to the provisions of paragraph 2 of this article. the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. 4 . all possible steps shall be taken to avoid impeding the performance of consular functions. Article 34 202 . 2 .The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity. they are payable by the person who contracted with the sending State or with the person acting on its behalf.It shall also. regional or municipal dues and taxes whatsoever. If expropriation is necessary for such purposes. other than such as represent payment for specific services rendered.The receiving State shall either facilitate the acquisition on its territory. The consent of the head of the consular post may.Consular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner or lessee shall be exempt from all national. assist the consular post in obtaining suitable accommodation for its members. however. where necessary.Consular premises shall be inviolable to the extent provided in this article. under the law of the receiving State.1 . Article 33 The consular archives and documents shall be inviolable at all times and wherever they may be. 3 . 2 .The consular premises. by the sending State of premises necessary for its consular post or assist the latter in obtaining accommodation in some other way. and prompt.The exemption from taxation referred to paragraph 1 of this article shall not apply to such dues and taxes if. Article 31 1 . be assumed in case of fire or other disaster requiring prompt protective action. their furnishings. 2 . Article 32 1 .
In the performance of his functions he shall be protected by the receiving State. wherever situated. including diplomatic or consular couriers. if the competent authorities of the receiving State have serious reason to believe that the bag contains something other than the correspondence.The packages constituting the consular bag shall bear visible external marks of their character and may contain only official correspondence and documents or articles intended exclusively for official use. the bag shall be returned to its place of origin. the consular post may install and use a wireless transmitter only with the consent of the receiving State. the diplomatic missions and other consular posts . Official correspondence means all correspondence relating to the consular post and its functions. 7 . In communicating with the Government.The sending State.The consular bag shall be neither opened nor detained. 6 .The official correspondence of the consular post shall be inviolable. the consular post may employ all appropriate means. 4 . 5 .The consular courier shall be provided with an official document indicating his status and the number of packages constituting the consular bag. a permanent resident of the receiving State. Article 35 1 . nor. However. its diplomatic miss ion s and its consular posts may designate consular couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the consular bag in his charge. Except with the consent of the receiving State he shall be neither a national of the receiving State. the receiving State shall ensure freedom of movement and travel in its territory to all members of the consular post. they may request that the bag be opened in their presence by an authorized representative of the sending State. If this request is refused by the authorities of the sending State.A consular bag may be entrusted to the captain of a ship or of a commercial aircraft scheduled to land at an authorized port of entry. 3 . unless he is a national of the s ending State.The receiving State shall permit and protect freedom of communication on the part of the consular post for all official purposes. Nevertheless. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention. 2 .Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of nation al security. He shall be provided 203 . documents or articles referred to in paragraph 4 of this article. diplomatic or consular bags and messages in code or cipher. of the sending State.
such authorities shall have the duty: (a ) in the case of the death of a national of the sending State. 204 . to converse and correspond with him and to arrange for his legal representation. The said authorities shall inform the person concerned without delay of his rights under this subparagraph. custody or detention in their district in pursuance of a judgment. but he shall not be considered to be a consular courier. without delay. Article 36 1 . in prison. custody or detention shall be forwarded by the said authorities without delay. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State. (b ) if he so requests. the competent authorities of the receiving State shall. the consular post may send one of its members to take possession of the bag directly and freely from the captain of the ship or of the aircraft.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State. (c) consular officers shall have the right to visit a national of the s ending State who is in prison. consular officers shall refrain from taking action on behalf of a national who is in prison. 2 . within its consular district.with an official document indicating the number of packages constituting the bag. to inform without delay the consular post in whose district the death occurred. custody or detention if he expressly opposes such action. By arrangement with the appropriate local authorities. however. a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a ) consular officers shall be free to communicate with nationals of the sending State and to have access to them. inform the consular post of the sending State if. Nevertheless. custody or detention. Any communication addressed to the consular post by the person arrested. Article 37 If the relevant information is available to the competent authorities of the receiving State. They shall also have the right to visit any national of the sending State who is in prison. subject to the proviso. that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.
(b ) the competent central authorities of the receiving State if and to the extent that this is allowed by the law s.If criminal proceedings are instituted against a consular officer. be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments.Except in the case specified in paragraph 1 of this article. having the nationality of the sending State. 2 . or if an aircraft registered in the sending State suffers an accident on the territory of the receiving State. to inform without delay the consular post nearest to the scene of the occurrence. 2 .Consular officers shall not be liable to arrest or detention pending trial. freedom or dignity. is wrecked or runs aground in the territorial sea or internal waters of the receiving State. consular officers may address (a ) the competent local authorities of their consular district. Article 39 1 . and the receipts for such fees and charges.The consular post may levy in the territory of the receiving State the fees and charges provided by the laws and regulations of the s ending State for consular acts. Article 40 The receiving State shall treat consular officers with du e respect and shall take all appropriate steps to prevent any attack on their person. 3 . regulations and usages of the receiving State or by the relevant international agreements. the proceedings shall be 205 . Article 41 1 . (c) if a vessel.The sums collected in the form of the fees and charges referred to in paragraph 1 of this article.(b ) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the s ending State. however. except in the case of a grave crime and pursuant to a decision by the competent judicial authority. consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect. The giving of this information shall. shall be exempt from all dues and taxes in the receiving State. Nevertheless. he must appear before the competent authorities. Article 38 In the exercise of their functions.
however. It may. it has become necessary to detain a consular officer.Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. in a manner which will hamper the exercise of consular functions as little as possible.Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. no coercive measure or penalty may be applied to him. the receiving State shall promptly notify the head of the consular post. when possible. pending trial. the receiving State shall notify the sending State through the diplomatic channel. Should the latter be himself the object of any such measure.conducted with the respect due to him by reason of his official position and. 2 . vessel or aircraft. They are also entitled to 206 . or of criminal proceedings being instituted against him. If a consular officer should decline to do so. 2. of a member of the consular staff. When.The provisions of paragraph 1 of this article shall not. apply in respect of a civil action either (a ) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State. Article 43 1 . 3 . Article 44 1 .The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. or (b ) by a third party for damage arising from an accident in the receiving State caused by a vehicle. decline to give evidence. A consular employee or a member of the service staff shall not. Article 42 In the event of the arrest or detention. except in the case specified in paragraph 1 of this article. except in the cases mentioned in paragraph 3 of this article. the proceedings against him shall be instituted with the minimum of delay. in the circumstances mentioned in paragraph 1 of this article. take such evidence at his residence or at the consular post or accept a statement from him in writing.Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings .
43 and 44. be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.The sending State may waive.The waiver shall in all cases be express.The waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings shall not be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decision. and shall be communicated to the receiving State in writing. 4 .Subject to the provisions of paragraph 3 of this article. a separate waiver shall be necessary. Article 48 1 . and 207 . Article 45 1 . 2 . with regard to a member of the consular post. with respect to services rendered for the sending State. Article 46 1 .Consular officers and consular employees an d members of their families forming part of their households shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits.decline to give evidence as expert witnesses with regard to the law of the sending State. however. in respect of such measures. members of the consular post with respect to services rendered by them for the sending State. except as provided in paragraph 3 of this article. apply to any consular employee who is not a permanent employee of the sending State or who carries on any private gainful occupation in the receiving State or to any member of the family of any such employee. 3 .The provisions of paragraph 1 of this article shall not. any of the privileges and immunities provided for in articles 41. be exempt from the obligation s referred to in paragraph 1 of this article. 2 .Members of the private staff of consular officers and of consular employees shall.Members of the consular post shall. if they do not carry on any other gainful occupation in the receiving State. Article 47 1 .The initiation of proceedings by a consular officer or a consular employee in a matter where he might enjoy immunity from jurisdiction under article 43 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim. 2 .
personal or real. regional or municipal. (b ) dues or taxes on private immovable property situated in the territory of the receiving State. 2 . subject to the provisions of article 32. national. subject to the provisions of paragraph (b) of article 51. (f) registration. Article 49 1 .Members of the service staff shall be exempt from dues and taxes on the wages which they receive for their services. subject to the provisions of article 32 . except: (a ) indirect taxes of a kind which are normally incorporated in the price of goods or services. court or record fees.The exemption provided for in paragraph 1 of this article shall apply also to members of the private staff who are in the sole employ of members of the consular post. mortgage dues and stamp duties. succession or inheritance duties.The exemption provided for in paragraphs 1 an d 2 of this article shall not preclude voluntary participation in the social security system of the receiving State.Consular officers and consular employees an d members of their families forming part of their households shall be exempt from all dues and taxes. 3 . on condition: (a ) that they are not nationals of or permanently resident in the receiving State.Members of the consular post who employ persons to whom the exemption provided for in paragraph 2 of this article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers. (c) estate. (e) charges levied for specific services rendered. and duties on transfers. shall be exempt from social security provisions which may be in force in the receiving State. (d ) dues and taxes on private income. 4 .members of their families forming part of their households. and (b ) that they are covered by the social security provisions which are in force in the sending State or a third State. including capital gain s. having its source in the receiving State and capital taxes relating to investments made in commercial or financial undertakings in the receiving State. provided that such participation is permitted by that State. 208 . 2 . levied by the receiving State.
Article 51 In the event of the death of a member of the consular post or of a member of his family forming part of his household.Consular employees shall enjoy the privileges and exemptions specified in paragraph 1 of this article in respect of articles imported at the time of first installation. 2 .Personal baggage accompanying consular officers and members of their families forming part of their households shall be exempt from inspection. (b ) articles for the personal use of a consular officer or members of his family forming part of his household. and duties on transfers. Such inspection shall be carried out in the presence of the consular officer or member of his family concerned.Members of the consular post who employ persons whose wages or s alaries are not exempt from income tax in the receiving State shall observe the obligations which the laws and regulations of that State impose upon employers concerning the levying of income tax. with the exception of any such property acquired in the receiving State the export of which was prohibited at the time of his death. and related charges other than charges for storage. 3 . Article 50 1 . taxes. on: (a ) articles for the official use of the consular post.3 . in accordance with such laws and regulations as it may adopt. (b ) shall not levy national. region al or municipal estate. cartage and similar services. including articles intended for his establishment. succession or inheritance duties.The receiving State shall. permit entry of and grant exemption from all customs duties. the receiving State: (a ) shall permit the export of the movable property of the deceased. on movable property the presence of which in the receiving State was due solely to the presence in that State of the deceased as a 209 . The articles intended for consumption shall not exceed the quantities necessary for direct utilization by the persons concerned. It may be inspected only if there is serious reason to believe that it contains articles other than those referred to in subparagraph (b) of paragraph 1 of this article. or articles the import or export of which is prohibited by the laws and regulations of the receiving State or which are subject to its quarantine laws and regulations.
with respect to acts performed by a consular officer or a consular employee in the exercise of his functions. if already in its territory. the members of his family forming part of his household shall continue to enjoy the privileges and immunities accorded to them until they leave the receiving State or until the e expiry o f a reasonable p period enabling them to do so. their privileges and immunities shall subsist until the time of their departure. whichever is the sooner. whichever is the s sooner. 210 . whichever is the latest. and from military obligations such as those connected with requisitioning. his privileges and immunities and those of a member of his family forming part of his household or a member of his private staff shall normally cease at the moment t when the person concerned leaves the receiving State or on the expiry of a reasonable period in which to do so. from the moment when he enters on his duties with the consular post. from all public service of any kind whatsoever. In the case of the persons referred to in paragraph 2 of this article. 4 . military contributions and billeting. Article 52 The receiving State shall exempt members of the consular post and members of their families forming part of their households from all personal services.Every member of the consular post shall enjoy the privileges and immunities provided in the present Convention from the moment he enters the territory of the receiving State on proceeding to take up his post or. 2 . even in case of armed conflict. however. their privileges and immunities shall come to an end when they cease to belong to the household or to be in the service of a member of the consular post provided.Members of the family of a member of the consular post forming part of his household and members of his private staff shall receive the privileges and immunities provided in the present Convention from the date from which he enjoys privileges and immunities in accordance with paragraph 1 of this article or from the date of their entry into the territory of the receiving State or from the date of their becoming a member of such family or private staff. Article 53 1 .member of the consular post or as a member of the family of a member of the consular post. but shall subsist until that time.However.In the event of the death of a member of the consular post. 5 . that if such persons intend leaving the receiving State within a reasonable period thereafter. immunity from jurisdiction shall continue to subsist without limitation of time.When the functions of a member of the consular post have come to an end. 3 .
In that event. and to official communication s and to consular bags. for the purposes of the present Convention.The consular premises shall not be used in any manner incompatible with the exercise of consular functions. They also have a duty not to interfere in the internal affairs of the State. be considered to form part of the consular premises. 2 . the third State shall accord to him all immunities provided for by the other articles of the present t Convention as may be required to ensure his transit or return. provided that the p remises assigned to them are separate from those used by the consular post. Article 55 1 .The obligations of third States under paragraphs 1. and to consular bags in transit. which has granted him a visa if a visa was necessary.In circumstances similar to those specified in paragraph 1 of this article. including messages in code or cipher. third States shall not hinder the transit through their territory of other members of the consular post or of members of their families forming part of their households. 2 and 3 of this article shall also apply to the persons mentioned respectively in those paragraphs. 2 . the same freedom and protection as the receiving g State is bound to accord under the present Convention. the said offices s hall not. 3 . 4 . the same inviolability and protection as the receiving State is bound to accord under the present Convention. 3 .Without prejudice to their privileges and immunities. They shall accord to consular couriers who have been granted a visa. 211 .Third States shall accord to o official correspondence and to other official communications in transit. if a visa was necessary. it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.The provisions of paragraph 2 of this article shall not exclude the possibility of offices of other institutions or agencies being installed in part of the building in which the consular premises are situated.If a consular officer passes through or is in the territory of a third State. The same shall apply in the case of any member of his family forming part of his household enjoying such p privileges and immunities who are accompanying the consular officer or travelling separately to join him or to return to the sending State. whose presence in the territory of the third State is due to force majeure. w while proceeding to take up or return to his post or when returning to the sending g State.Article 54 1 .
37. 36. 2 . Article 57 1 . in respect of insurance against third party risks arising from the use of any vehicle. 65. 29. privileges and immunities of such consular posts shall be governed by articles 59.Career consular officers shall not carry on for personal profit any professional or commercial activity in the receiving State. (b ) to members of the family of a person referred to in subparagraph (a) of this paragraph or to members of his private staff. 38 and 39. 4 . (c) to members of the family of a member of a consular post who themselves carry on any private gainful occupation in the receiving State.The exchange of consular bags between two consular posts headed by honorary consular officers in different States shall not be allowed without the consent of the two receiving States concerned. 30.Articles 42 and 43. 64. In addition. the facilities.Privileges and immunities provided in the present Convention shall not be accorded to members of the family of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer.Privileges and immunities provided in this chapter shall not be accorded : (a ) to consular employees or to members of the service staff who carry on any private gainful occupation in the receiving State. paragraph 3 of article 54 and paragraphs 2 and 3 of article 55 s hall apply to consular posts headed by an honorary consular officer. vessel or aircraft. 34. 66 an d 67. 3 . 212 . In addition. paragraph 3 of article 44 . articles 45 and 53 and paragraph 1 of article 55 shall apply to honorary consular officers.Article 56 Members of the consular post shall comply with an y requirements imposed by the laws and regulations of the receiving State. 60.Articles 28. Article 59 T he receiving State shall take such steps as may be necessary to protect the consular premises of a consular post headed by an honorary consular officer against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity. 61 and 62. the facilities. 35. 2 . Article 58 1 . privileges and immunities of such consular officers shall be governed by articles 63.
Article 60 1 . Article 61 T he consular archives and documents of a consular post headed by an honorary consular officer shall be inviolable at all times and wherever they may be. under the laws and regulations of the receiving State. office equipment and similar articles supplied by or at the instance of the sending State to the consular post. 2 . Article 65 213 . the proceedings against him shall be instituted with the minimum of delay. books or documents relating to their profession or trade Article 62 The receiving State shall. in particular. signboards. in accordance with such laws and regulations as it may adopt. official printed matter. office furniture.Consular premises of a consular post headed by an honorary consular officer of which the sending State is the owner or lessee shall be exempt from all national. other than such as represent payment for specific services rendered. When it has become necessary to detain an honorary consular officer. except when he is under arrest or detention. seals and stamps. taxes. and from the materials. provided that they are for the official use of a consular post headed by an honorary consular officer: coats-of-arms.The exemption from taxation referred to in paragraph l of this article shall not apply to such dues and taxes if. permit entry of. in a manner which will hamper the exercise of consular functions as little as possible. from the private correspondence of the head of a consular post and of any person working with him. Article 63 If criminal proceedings are instituted against an honorary consular officer. and grant exemption from all customs duties. the proceedings shall be conducted with the respect due to him by reason of his official position and. cartage and similar services on the following articles. books. and related charges other than charges for storage. he must appear before the competent authorities. Nevertheless. provided that they are kept separate from other papers and documents and. regional or municipal dues and taxes whatsoever. flags. Article 64 T he receiving State is under a duty to accord to an honorary consular officer such protection as may be required by reason of his official position. they are payable by the person who contracted with the sending State.
3 . shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits.The conditions under which the consular agencies referred to in paragraph 1 of this article may carry on their activities and the privileges and immunities which may be enjoyed by the consular agents in charge of them shall be determined by agreement between the s ending State and the receiving State. with the exception of those who carry on for personal profit any professional or commercial activity in the receiving State. 2 . Article 67 The receiving State shall exempt honorary consular officers from all personal services and from all public services of any kind whatsoever and from military obligations such as those connected with requisitioning. to the exercise of consular functions by a diplomatic mission. 2 . military contribution s and billeting.The names of members of a diplomatic mission assigned to the consular section or otherwise charged with the exercise of the consular functions of the miss ion shall be notified to the Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry.Exemption from registration of aliens and residence permits Honorary consular officers.Each State is free to decide whether it will establish or admit consular agencies conducted by consular agents not designated as head s o f consular post by the sending State. so far as the context permits. Article 70 1 . Article 66 A n honorary consular officer shall be exempt from all dues and taxes on the remuneration an emoluments which he receives from the sending State in respect of the exercise of consular functions.The provisions of the present Convention apply also. Article 69 1 .In the exercise of consular functions a diplomatic mission may address: 214 . Article 68 Each State is free to decide whether it will appoint or receive honorary consular officers.
privileges and immunities may be granted by the receiving State.The privileges and immunities of the members of a diplomatic mission referred to in paragraph 2 of this article s hall continue to be governed by the rules of international law concerning diplomatic relations. Article 72 1 . regulations and usages of the receiving State or by relevant international agreements. the proceedings shall. shall enjoy facilities.Other members of the consular post who are nationals of or permanently resident in the receiving State and members of their families. as w ell as members of the families of consular officers referred to in paragraph 1 of this article. the receiving State shall likewise be bound by the obligation laid down in article 42. Those members of the families of members of the consular post and those members of the private staff who are themselves nationals of or permanently resident in the receiving State shall likewise enjoy facilities. Article 71 1 . be conducted in a manner which will hamper the exercise of consular functions as little as possible. 4 . privileges and immunities only insofar as these are granted to them by the receiving State. however. consular officers who are nationals of or permanently resident in the receiving State shall enjoy only immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions. The receiving State shall. privileges and immunities only insofar as these are granted to them by the receiving State. 2 .(a ) the local authorities of the consular district. discrimination shall not be regarded as taking place: (a ) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its consular posts in the sending State. exercise its jurisdiction over those persons in such a way as not to hinder unduly the performance of the functions of the consular post.In the application of the provisions of the present Convention the receiving State shall not discriminate as between States. If criminal proceedings are instituted against such a consular officer.However.Except insofar as additional facilities. 215 . except when he is under arrest or detention. So far as these consular officers are concerned. and the privileges provided in paragraph 3 of article 44. 2 . (b ) the central authorities of the receiving State if this is allowed by the laws .
(f) “contracting State” means a State which has con sented to be bound by the treaty. approving or acceding to a treaty. whether or not the treaty has entered into force. for expressing the consent of the State to be bound by a treaty. adopting or authenticating the text of a treaty. Article 2 Use of terms 1. 216 . (g) “party” means a State which has consented to be bound by the treaty and for which the treaty is in force. whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. (e) “negotiating State” means a State which took part in the drawing up and adoption of the text of the treaty. “acceptance”. “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty. For the purposes of the present Convention: (a) “treaty” means an international agreement concluded between States in written form and governed by international law. whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. made by a State. (c) “full powers” means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating. accepting. when signing. ratifying. or for accomplishing any other act with respect to a treaty. Vienna Convention on the Law of Treaties Done at Vienna on 23 May 1969 Article 1 Scope of the present Convention The present Convention applies to treaties between States. however phrased or named.(b ) where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention. (b) “ratification”. (d) “reservation” means a unilateral statement.
Article 5 Treaties constituting international organizations and treaties adopted within an international organization 217 . (i) “international organization” means an intergovernmental organization. (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention. the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States. Article 4 Non-retroactivity of the present Convention Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention. The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any State. (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties. or to international agreements not in written form. 2.(h) “third State” means a State not a party to the treaty. Article 3 International agreements not within the scope of the present Convention The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law. shall not affect: 3 (a) the legal force of such agreements.
In virtue of their functions and without having to produce full powers. (c) representatives accredited by States to an international conference or to an international organization or one of its organs. the following are considered as representing their State: (a) Heads of State. Heads of Government and Ministers for Foreign Affairs. or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers. organization or organ. 2. CONCLUSION AND ENTRY INTO FORCE OF TREATIES SECTION 1. PART II.The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization. CONCLUSION OF TREATIES Article 6 Capacity of States to conclude treaties Every State possesses capacity to conclude treaties. (b) heads of diplomatic missions. Article 8 218 . for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited. for the purpose of performing all acts relating to the conclusion of a treaty. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers. for the purpose of adopting the text of a treaty in that conference. Article 7 Full powers 1.
approval or accession. acceptance. Article 10 Authentication of the text The text of a treaty is established as authentic and definitive: (a) by such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up. Article 12 Consent to be bound by a treaty expressed by signature 1. or by any other means if so agreed. Article 9 Adoption of the text 1. signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text. ratification. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2. exchange of instruments constituting a treaty. unless by the same majority they shall decide to apply a different rule. 2. The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting. Article 11 Means of expressing consent to be bound by a treaty The consent of a State to be bound by a treaty may be expressed by signature. by the signature. or (b) failing such procedure.Subsequent confirmation of an act performed without authorization An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State. The consent of a State to be bound by a treaty is expressed by the signature of its representative when: 219 .
(c) the representative of the State has signed the treaty subject to ratification. or (c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation. (b) it is otherwise established that the negotiating States were agreed that signature should have that effect. constitutes a full signature of the treaty. 220 . For the purposes of paragraph 1: (a) the initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed. or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation. if confirmed by his State.(a) the treaty provides that signature shall have that effect. The consent of a State to be bound by a treaty is expressed by ratification when: 6 (a) the treaty provides for such consent to be expressed by means of ratification. acceptance or approval 1. Article 14 Consent to be bound by a treaty expressed by ratification. (b) it is otherwise established that the negotiating States were agreed that ratification should be required. Article 13 Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when: (a) the instruments provide that their exchange shall have that effect. (b) the signature ad referendum of a treaty by a representative. 2. or (b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect.
Without prejudice to articles 19 to 23. Article 17 Consent to be bound by part of a treaty and choice of differing provisions 1. 7 2. Article 16 Exchange or deposit of instruments of ratification. approval or accession establish the consent of a State to be bound by a treaty upon: (a) their exchange between the contracting States.2. The consent of a State to be bound by a treaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates. Article 15 Consent to be bound by a treaty expressed by accession The consent of a State to be bound by a treaty is expressed by accession when: (a) the treaty provides that such consent may be expressed by that State by means of accession. the consent of a State to be bound by part of a treaty is effective only if the treaty so permits or the other contracting States so agree. approval or accession Unless the treaty otherwise provides. (b) it is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession. acceptance. if so agreed. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification. 221 . or (c) all the parties have subsequently agreed that such consent may be expressed by that State by means of accession. instruments of ratification. (b) their deposit with the depositary. acceptance. or (c) their notification to the contracting States or to the depositary.
or (b) it has expressed its consent to be bound by the treaty. a reservation requires acceptance by all the parties. until it shall have made its intention clear not to become a party to the treaty. formulate a reservation unless: (a) the reservation is prohibited by the treaty. may be made. approving or acceding to a treaty. the reservation is incompatible with the object and purpose of the treaty. 222 . (b) the treaty provides that only specified reservations. ratifying. accepting. Article 20 Acceptance of and objection to reservations 1. or (c) in cases not failing under subparagraphs (a) and (b). SECTION 2. pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty.Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification. RESERVATIONS Article 19 Formulation of reservations A State may. acceptance or approval. which do not include the reservation in question. when signing. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides. 2.
3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization. 4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: 8 (a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States; (b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State; (c) an act expressing a State’s consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation. 5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later. Article 21 Legal effects of reservations and of objections to reservations 1. A reservation established with regard to another party in accordance with articles 19, 20 and 23: (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State. 2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.
3. When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation. Article 22 Withdrawal of reservations and of objections to reservations 1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal. 2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time. 3. Unless the treaty otherwise provides, or it is otherwise agreed: 9 (a) the withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been received by that State; (b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State which formulated the reservation.
Article 23 Procedure regarding reservations 1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty. 2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation. 3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation.
4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing. SECTION 3. ENTRY INTO FORCE AND PROVISIONAL, APPLICATION OF TREATIES Article 24 Entry into force 1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text. 10 Article 25 Provisional application 1. A treaty or a part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed. 2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty. PART III. OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES SECTION 1. OBSERVANCE OF TREATIES
Article 26 “Pacta sunt servanda” Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Article 27 Internal law and observance of treaties A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46. SECTION 2. APPLICATION OF TREATIES Article 28 Non-retroactivity of treaties Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. Article 29 Territorial scope of treaties Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory. Article 30 Application of successive treaties relating to the same subject matter 1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs. 2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier
treaty applies only to the extent that its provisions are compatible with those of the later treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States Parties to both treaties the same rule applies as in paragraph 3; (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations. 5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty. SECTION 3. INTERPRETATION OF TREATIES Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: 12 (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
The terms of the treaty are presumed to have the same meaning in each authentic text. when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. in case of divergence. shall be adopted. the meaning which best reconciles the texts. including the preparatory work of the treaty and the circumstances of its conclusion.(c) any relevant rules of international law applicable in the relations between the parties. or (b) leads to a result which is manifestly absurd or unreasonable. the text is equally authoritative in each language. Article 33 Interpretation of treaties authenticated in two or more languages 1. in order to confirm the meaning resulting from the application of article 31. When a treaty has been authenticated in two or more languages. unless the treaty provides or the parties agree that. 2. A special meaning shall be given to a term if it is established that the parties so intended. 4. 228 . Except where a particular text prevails in accordance with paragraph 1. or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure. 4. 3. having regard to the object and purpose of the treaty. a particular text shall prevail.
A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State. TREATIES AND THIRD STATES Article 34 General rule regarding third States A treaty does not create either obligations or rights for a third State without its consent.SECTION 4. unless it is established that they had otherwise agreed. and the third State assents thereto. When an obligation has arisen for a third State in conformity with article 35. Its assent shall be presumed so long as the contrary is not indicated. or to a group of States to which it belongs. Article 37 Revocation or modification of obligations or rights of third States 1. 2. the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State. unless the treaty otherwise provides. or to all States. 13 Article 35 Treaties providing for obligations for third States An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing. 229 . Article 36 Treaties providing for rights for third States 1. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty.
3.2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States. (b) the negotiation and conclusion of any agreement for the amendment of the treaty. 2. recognized as such. Article 38 Rules in a treaty becoming binding on third States through international custom Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law. 4. each one of which shall have the right to take part in: (a) the decision as to the action to be taken in regard to such proposal. the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State. Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended. The rules laid down in Part II apply to such an agreement except insofar as the treaty may otherwise provide. When a right has arisen for a third State in conformity with article 36. paragraph 4 (b). The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement. AMENDMENT AND MODIFICATION OF TREATIES Article 39 General rule regarding the amendment of treaties A treaty may be amended by agreement between the parties. Unless the treaty otherwise provides. article 30. the amendment of multilateral treaties shall be governed by the following paragraphs. applies in relation to such State. 230 . 14 Article 40 Amendment of multilateral treaties 1. PART IV.
5. PART V. TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES SECTION 1. Unless in a case falling under paragraph 1 (a) the treaty otherwise provides. INVALIDITY. Article 41 Agreements to modify multilateral treaties between certain of the parties only 1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) the possibility of such a modification is provided for by the treaty. the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides. GENERAL PROVISIONS 231 . failing an expression of a different intention by that State: (a) be considered as a party to the treaty as amended. and (b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement. derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole. (ii) does not relate to a provision. or (b) the modification in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations. 2. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall.
3. it may be invoked only with respect to those clauses where: (a) the said clauses are separable from the remainder of the treaty with regard to their application. terminating. or the suspension of its operation. Article 43 Obligations imposed by international law independently of a treaty The invalidity. the withdrawal of a party from it. A right of a party. withdraw from or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides or the parties otherwise agree. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention. to denounce. The same rule applies to suspension of the operation of a treaty. as a result of the application of the present Convention or of the provisions of the treaty. shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty. Article 44 Separability of treaty provisions 1. may take place only as a result of the application of the provisions of the treaty or of the present Convention.Article 42 Validity and continuance in force of treaties 1. withdrawing from or suspending the operation of a treaty recognized in the present Convention may be invoked only with respect to the whole treaty except as provided in the following paragraphs or in article 60. (b) it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole. 2. provided for in a treaty or arising under article 56. its denunciation or the withdrawal of a party. and 232 . A ground for invalidating. If the ground relates solely to particular clauses. The termination of a treaty. 2. termination or denunciation of a treaty.
INVALIDITY OF TREATIES Article 46 Provisions of internal law regarding competence to conclude treaties 1. Article 47 Specific restrictions on authority to express the consent of a State If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction. no separation of the provisions of the treaty is permitted. Article 45 Loss of a right to invoke a ground for invalidating. SECTION 2. 2. 4. withdrawing from or suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if. subject to paragraph 3. In cases falling under articles 51. to the particular clauses alone. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 52 and 53. terminating. In cases falling under articles 49 and 50. his omission to observe 233 . terminating.(c) continued performance of the remainder of the treaty would not be unjust. as the case may be. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. as the case may be. or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation. the State entitled to invoke the fraud or corruption may do so with respect either to the whole treaty or. 16 5. withdrawing from or suspending the operation of a treaty A State may no longer invoke a ground for invalidating. after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation.
A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. Article 51 234 . Article 49 Fraud If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State. article 79 then applies. Article 48 Error 1. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error. 3. the State may invoke the fraud as invalidating its consent to be bound by the treaty. the State may invoke such corruption as invalidating its consent to be bound by the treaty. 17 2.that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating States prior to his expressing such consent. An error relating only to the wording of the text of a treaty does not affect its validity. Article 50 Corruption of a representative of a State If the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State.
or (b) at any time by consent of all the parties after consultation with the other contracting States. For the purposes of the present Convention. it conflicts with a peremptory norm of general international law. Article 55 Reduction of the parties to a multilateral treaty below the number necessary for its entry into force 235 . Article 52 Coercion of a State by the threat or use of force A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES Article 54 Termination of or withdrawal from a treaty under its provisions or by consent of the parties The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty. at the time of its conclusion. 18 SECTION 3.Coercion of a representative of a State The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect. Article 53 Treaties conflicting with a peremptory norm of general international law (“jus cogens”) A treaty is void if.
Article 56 Denunciation of or withdrawal from a treaty containing no provision regarding termination. or (b) the suspension in question is not prohibited by the treaty and: 236 . denunciation or withdrawal 1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal. a multilateral treaty does not terminate by reason only of the fact that the number of the parties falls below the number necessary for its entry into force. or (b) at any time by consent of all the parties after consultation with the other contracting States. 2. Two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of provisions of the treaty. 19 Article 58 Suspension of the operation of a multilateral treaty by agreement between certain of the parties only 1. or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. if: (a) the possibility of such a suspension is provided for by the treaty. Article 57 Suspension of the operation of a treaty under its provisions or by consent of the parties The operation of a treaty in regard to all the parties or to a particular party may be suspended: (a) in conformity with the provisions of the treaty.Unless the treaty otherwise provides. temporarily and as between themselves alone. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.
The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject matter and: (a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty. Article 60 Termination or suspension of the operation of a treaty as a consequence of its breach 1. Article 59 Termination or suspension of the operation of a treaty implied by conclusion of a later treaty 1. 2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State. 2.(i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations. the parties in question shall notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend. Unless in a case falling under paragraph 1 (a) the treaty otherwise provides. (ii) is not incompatible with the object and purpose of the treaty. or (b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 237 . or (ii) as between all the parties. 2.
If the impossibility is temporary. it may be invoked only as a ground for suspending the operation of the treaty. 5.(b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State. (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. 4. Impossibility of performance may not be invoked by a party as a ground for terminating. for the purposes of this article. 2. Article 61 Supervening impossibility of performance 1. A material breach of a treaty. consists in: (a) a repudiation of the treaty not sanctioned by the present Convention. 3. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character. or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. Article 62 Fundamental change of circumstances 238 . in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.
and 21 (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. and which was not foreseen by the parties. any existing treaty which is in conflict with that norm becomes void and terminates. SECTION 4. under the foregoing paragraphs. Article 64 Emergence of a new peremptory norm of general international law (“jus cogens”) If a new peremptory norm of general international law emerges. 2.1. Article 63 Severance of diplomatic or consular relations The severance of diplomatic or consular relations between parties to a treaty does not affect the legal relations established between them by the treaty except insofar as the existence of diplomatic or consular relations is indispensable for the application of the treaty. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary. 3. PROCEDURE Article 65 239 . may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty. If. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty.
A party which. except in cases of special urgency. terminating it. the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settlement of disputes. under the provisions of the present Convention. shall not be less than three months after the receipt of the notification. no party has raised any objection. after the expiry of a period which. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor. withdrawal from or suspension of the operation of a treaty 1. termination. must notify the other parties of its claim. by a written application. 2.Procedure to be followed with respect to invalidity. 22 3. submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration. If. Without prejudice to article 45. under paragraph 3 of article 65. (b) any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in part V of the present Convention may set in motion the 240 . no solution has been reached within a period of 12 months following the date on which the objection was raised. the following procedures shall be followed: (a) any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may. If. objection has been raised by any other party. withdrawing from it or suspending its operation. invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty. however. 5. 4. arbitration and conciliation If. the party making the notification may carry out in the manner provided in article 67 the measure which it has proposed. the fact that a State has not previously made the notification prescribed in paragraph 1 shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation. Article 66 Procedures for judicial settlement.
Article 68 Revocation of notifications and instruments provided for in articles 65 and 67 A notification or instrument provided for in article 65 or 67 may be revoked at any time before it takes effect. TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY Article 69 Consequences of the invalidity of a treaty 1. In cases falling under article 49. must be made in writing. withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of article 65 shall be carried out through an instrument communicated to the other parties. 3. terminating. The provisions of a void treaty have no legal force. 2. A treaty the invalidity of which is established under the present Convention is void. 50.procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations. Head of Government or Minister for Foreign Affairs. 241 . terminating. Any act of declaring invalid. 51 or 52. the representative of the State communicating it may be called upon to produce full powers. 2. paragraph 1. paragraph 2 does not apply with respect to the party to which the fraud. If acts have nevertheless been performed in reliance on such a treaty: (a) each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed. (b) acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty. withdrawing from or suspending the operation of a treaty 1. 23 SECTION 5. CONSEQUENCES OF THE INVALIDITY. the act of corruption or the coercion is imputable. If the instrument is not signed by the Head of State. The notification provided for under article 65. Article 67 Instruments for declaring invalid.
(b) does not affect any right. provided that those rights. In the case of the invalidity of a particular State’s consent to be bound by a multilateral treaty. Article 70 Consequences of the termination of a treaty 1. 2. and 24 (b) bring their mutual relations into conformity with the peremptory norm of general international law. In the case of a treaty which is void under article 53 the parties shall: (a) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law. the termination of the treaty: (a) releases the parties from any obligation further to perform the treaty. obligation or legal situation of the parties created through the execution of the treaty prior to its termination. Unless the treaty otherwise provides or the parties otherwise agree. In the case of a treaty which becomes void and terminates under article 64. 2. paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect. 242 .4. the termination of a treaty under its provisions or in accordance with the present Convention: (a) releases the parties from any obligation further to perform the treaty. If a State denounces or withdraws from a multilateral treaty. the foregoing rules apply in the relations between that State and the parties to the treaty. obligation or legal situation of the parties created through the execution of the treaty prior to its termination. (b) does not affect any right. obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law. Article 71 Consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law 1.
Unless the treaty otherwise provides or the parties otherwise agree. 2. During the period of the suspension the parties shall refrain from acts tending to obstruct the resumption of the operation of the treaty. The conclusion of a treaty does not in itself affect the situation in regard to diplomatic or consular relations. 25 Article 75 243 . State responsibility and outbreak of hostilities The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States. the suspension of the operation of a treaty under its provisions or in accordance with the present Convention: (a) releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of the suspension. (b) does not otherwise affect the legal relations between the parties established by the treaty. PART VI. Article 74 Diplomatic and consular relations and the conclusion of treaties The severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between those States. MISCELLANEOUS PROVISIONS Article 73 Cases of State succession.Article 72 Consequences of the suspension of the operation of a treaty 1.
2. The designation of the depositary of a treaty may be made by the negotiating States. NOTIFICATIONS. Article 77 Functions of depositaries 1. an international organization or the chief administrative officer of the organization. comprise in particular: (a) keeping custody of the original text of the treaty and of any full powers delivered to the depositary. the fact that a treaty has not entered into force between certain of the parties or that a difference has appeared between a State and a depositary with regard to the performance of the latter’s functions shall not affect that obligation. either in the treaty itself or in some other manner. PART VII.Case of an aggressor State The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State’s aggression. The depositary may be one or more States. CORRECTIONS AND REGISTRATION Article 76 Depositaries of treaties 1. In particular. 244 . The functions of the depositary of a treaty are international in character and the depositary is under an obligation to act impartially in their performance. DEPOSITARIES. The functions of a depositary. unless otherwise provided in the treaty or agreed by the contracting States.
notifications and communications relating to the treaty.(b) preparing certified copies of the original text and preparing any further text of the treaty in such additional languages as may be required by the treaty and transmitting them to the parties and to the States entitled to become parties to the treaty. notification or communication relating to the treaty is in due and proper form and. notifications and communications relating to it. approval or accession required for the entry into force of the treaty has been received or deposited. the depositary shall bring the question to the attention of the signatory States and the contracting States or. upon its receipt by the depositary. (h) performing the functions specified in other provisions of the present Convention. if need be. (b) be considered as having been made by the State in question only upon its receipt by the State to which it was transmitted or. 245 . (d) examining whether the signature or any instrument. (g) registering the treaty with the Secretariat of the United Nations. (c) receiving any signatures to the treaty and receiving and keeping custody of any instruments. where appropriate. (e) informing the parties and the States entitled to become parties to the treaty of acts. 2. to the latter. as the case may be. be transmitted direct to the States for which it is intended. In the event of any difference appearing between a State and the depositary as to the performance of the latter’s functions. 26 (f) informing the States entitled to become parties to the treaty when the number of signatures or of instruments of ratification. of the competent organ of the international organization concerned. acceptance. any notification or communication to be made by any State under the present Convention shall: (a) if there is no depositary. Article 78 Notifications and communications Except as the treaty or the present Convention otherwise provide. bringing the matter to the attention of the State in question. or if there is a depositary.
(b) an objection has been raised. paragraph 1 (e).(c) if transmitted to a depositary. the depositary shall make and initial the correction in the text and shall execute a procès-verbal of the rectification of the text and communicate a copy of it to the parties and to the States entitled to become parties to the treaty. 5. unless the signatory States and the contracting States otherwise decide. on the expiry of the time-limit: (a) no objection has been raised. 3. unless they decide upon some other means of correction. the error shall. Where the treaty is one for which there is a depositary. 4. the signatory States and the contracting States are agreed that it contains an error. 246 . The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations. be corrected: (a) by having the appropriate correction made in the text and causing the correction to be initialled by duly authorized representatives. be considered as received by the State for which it was intended only when the latter State has been informed by the depositary in accordance with article 77. the depositary shall communicate the objection to the signatory States and to the contracting States. after the authentication of the text of a treaty. Where. the latter shall notify the signatory States and the contracting States of the error and of the proposal to correct it and shall specify an appropriate time-limit within which objection to the proposed correction may be raised. The corrected text replaces the defective text ab initio. The rules in paragraphs I and 2 apply also where the text has been authenticated in two or more languages and it appears that there is a lack of concordance which the signatory States and the contracting States agree should be corrected. Article 79 Correction of errors in texts or in certified copies of treaties 1. (b) by executing or exchanging an instrument or instruments setting out the correction which it has been agreed to make. If. or (c) by executing a corrected text of the whole treaty by the same procedure as in the case of the original text. 2.
and for publication. The instruments of ratification shall be deposited with the Secretary-General of the United Nations. FINAL PROVISIONS Article 81 Signature The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or parties to the Statute of the International Court of Justice. and by any other State invited by the General Assembly of the United Nations to become a party to the Convention.6. the depositary shall execute a procès-verbal specifying the rectification and communicate a copy of it to the signatory States and to the contracting States. as the case may be. The designation of a depositary shall constitute authorization for it to perform the acts specified in the preceding paragraph. Article 83 247 . at United Nations Headquarters. at the Federal Ministry for Foreign Affairs of the Republic of Austria. after their entry into force. until 30 April 1970. be transmitted to the Secretariat of the United Nations for registration or filing and recording. and subsequently. Article 82 Ratification The present Convention is subject to ratification. PART VIII. New York. Treaties shall. 2. Article 80 Registration and publication of treaties 1. Where an error is discovered in a certified copy of a treaty. as follows: until 30 November 1969.
The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession. 2. being duly authorized thereto by their respective Governments. DONE at Vienna this twenty-third day of May. English. shall be deposited with the Secretary-General of the United Nations. one thousand nine hundred and sixtynine. Article 84 Entry into force 1. For each State ratifying or acceding to the Convention after the deposit of the thirtyfifth instrument of ratification or accession. 248 . The instruments of accession shall be deposited with the Secretary-General of the United Nations.Accession The present Convention shall remain open for accession by any State belonging to any of the categories mentioned in article 81. Russian and Spanish texts are equally authentic. French. the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession. of which the Chinese. IN WITNESS WHEREOF the undersigned Plenipotentiaries. Article 85 Authentic texts The original of the present Convention. have signed the present Convention.